AFTERNOON JOINT SESSION - ETHICS FOR IMMIGRATION ATTORNEYS: MATERIALS

Transcription

1 AFTERNOON JOINT SESSION - ETHICS FOR IMMIGRATION ATTORNEYS: MATERIALS AILA-DC 2012 FALL CONF. 309

2 The Most Common (and Surprising) Ethics Complaints in Immigration Practice By Reid F. Trautz 1 Several years ago, I appeared on a seminar panel with Jennifer Barnes, Disciplinary Counsel for EOIR and bar counsel from Maryland, Virginia and the District of Columbia to discuss the most common ethical complaints against lawyers. In addition, the Practice & Professionalism Center reviewed all EOIR disciplinary cases from The data is remarkably consistent: Immigration lawyers tend to get into trouble the same way lawyers in other practice areas get into trouble. Here are the top ways immigration lawyers get in disciplinary trouble, with practical ideas to help stay out: 1. Lack of Communication (Rule 1.4): Failure to return the client s telephone calls: Lawyers get busy and fail to timely communicate with clients. Immigration lawyers also may have language barriers that make phone conversations impossible or difficult. Schedule a block of time each day to return calls or s. Delegating calls to a staff member with language skills can help, but should not lead to the unauthorized practice of law. Failure to explain the process to the client: Part of a successful attorneyclient relationship is setting reasonable expectations and explaining both the legal process and possible outcomes. Lawyers who neglect this aspect of practice can be assured of a poor client relationship. Build in time from initial client intake through the end of the matter to educate clients on the process and range of potential outcomes. Create brochures, handbooks, or PowerPoint presentations to reinforce these efforts. Failure to follow client instructions: Listening to the client, especially when there is a language and cultural barrier is difficult. Document client instructions, and discuss if they seem unrealistic or worse. Taking time to confirm client instructions is well worth the investment of your time. 1 Reid F. Trautz is an attorney and director of AILA s Practice & Professionalism Center, where he provides guidance on management and ethics issues to help members improve their businesses and the delivery of services to their clients. He is a member of AILA, the Association of Professional Responsibility Lawyers, and a Fellow of the College of Law Practice Management. He can be reached at AILA National for free consultations at [email protected] or by phone at AILA-DC 2012 FALL CONF. 310

3 2. Failure to Appear: EOIR judges, whose docket is increasingly crowded, are pushing back against lawyers who: Fail to check to see if a motion to withdraw has been granted Send the client alone (with or without a note) to ask for a continuance EOIR judges are contacting Bar Counsel to lodge complaints against repeat offenders. File motions earlier, follow up by phone is possible; in-person if necessary. 3. Lack of Competence (Rule1.1): Failure to Know and Understand the Law: Competence to practice is the threshold question when accepting a new client matter. If you are unfamiliar with an area of the law, seek assistance, co-counsel with a competent lawyer, refer the matter out, or decline it. Boilerplate motions that lack specificity or analysis: This is a corollary to competency and is being watched closely by judges. Failure to deliver promised the results: Some lawyers feel the need to promise results or assure the client they are in good hands. This can lead the client to maintain high expectations. Most lawyers understand it is never a good idea to predict the outcome. It can also be harmful to imply your success rate or abilities are better than other attorneys, unless you are able to deliver on that implied promise. So don t sugarcoat the potential result: Consider stating a predicted range of outcomes in an engagement letter or other writing to the client so there is a baseline for shared expectations. 4. Handling Client Money and Property (Rules 1.15 & 1.16) Failure to Return the Client s File or Property: Most states bar ethics committees have opined that the client file in the lawyer s office is property of the client. Except for a few narrow exceptions, those states require that a lawyer must promptly turn over a file to the client. State rules differ on issues whether the lawyer can make a copy and charge the client, require a receipt, or require payment of past due legal fees. See Rule 1.16(d) and state bar legal ethics opinions for further information. Fee Disbursement Irregularities: Intentional or negligent misappropriation of client monies from a trust account. Tracking fees and costs, billing clients, and properly maintaining trust accounts is the key to avoiding this type of complaint. If you don t feel comfortable managing your trust account, then hire someone who can do it for you. Remember to check their work for problems or mistakes, because it is your reputation and license on the line. AILA-DC 2012 FALL CONF. 311

4 Failure to Fully Explain the Legal Fees: Many states require some type of disclosure or writing between the lawyer and client. It is always a good idea to have a fee agreement whether it is required or not. For non-english-speaking clients, consider having a translated version of your fee agreement. Also, remember when quoting a range for your fees ($1,500-$4,000) the clients almost always remember only the first number in the range. Failure to Understand the Impact of Dual Representation: Where the lawyer represents both an employee and employer in employment-based immigration or family members (often husband and wife) in family-based immigration, conflict issues can arise that impact on the return of client property, legal fees, and documenting the relationship. 5. Dealing with Client Fraud (Rules 1.6 & 3.3) Although not nearly as common as the first four ethical complaints, severe trouble can result if fraud or potential fraud is ignored. If you or your staff have a reasonable belief that a client is not being truthful about important facts used to prepare an application, you may have an ethical obligation to investigate further. This is because INA 274(c) holds a lawyer to a reckless standard when submitting a written application. This is where it gets tricky: The standards of culpability differ under the rules and INA 274(c). Model Rule 3.3 states, in part, that if a lawyer offers evidence that is false or later learns it is false, the lawyer shall take steps to correct the evidence, including disclosure to the tribunal, if necessary. That duty continues to the end of the proceeding or when the period for review has passed. Discovering that a client has lied to a tribunal is a difficult balancing act between confidentiality (Rule 1.6) and candor toward a tribunal (Rule 3.3). Model Rule 3.3 states, in part: (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. The balancing our ethical duties to both clients and tribunals is difficult. Reported cases are few, but the consequences to a lawyer s reputation and career can be enormous. State ethics rules vary as to which duty is greater candor to the court or confidentiality of the client. Be sure to read your Rules (and the accompanying comments) carefully when confronted with a possible issue. AILA-DC 2012 FALL CONF. 312

5 6. Being Proactive Much like we advise our clients to be proactive about their legal rights and responsibilities, we should take our own advice when it comes to legal ethics. It is better to take advance measures to prevent ethical problems than it is to be hit suddenly with an issue and the potential fallout. To be sure, there are ethical issues that can arise from nowhere, but most can be avoided with a small investment of time now. Schedule an hour per week just like you schedule clients but set aside this time to invest in your practice and your reputation. Call it your ethics hour--call it your CYA hour. Some activities to consider reviewing and revising: Review your standard fee agreement/engagement letter to make sure you are properly anticipating common problems for your practice. Often, this means conflict of interest issues including confidentiality, payment obligations, and ownership of the client file and documents therein. See the new edition of the Immigration Practice Toolbox for language ideas and examples. Our obligations of confidentiality can often be taken for granted: How well do we train staff members to keep quiet during and after employment with our office? Have you fully protected that information across your firm s computer network and portable devices such as smart phones and laptop computers? Take time to develop and implement secure policies and procedures to ensure client information remains confidential. For information, see the resources in the Ethics Resources on InfoNet. Read the rules! Many immigration lawyers believe that good lawyering includes the frequent re-reading of specific provisions of immigration law or regulation. It makes us better lawyers. The same goes for reading your states Rules of Professional Conduct; they are loaded with good information that helps us each time we review them. Spend ten minutes of your ethics hour each week reading one rule. You ll be done in a few months and far more the wiser. Be aware of the rise of Bar Counsel for EOIR and DHS. The Rules of Conduct for lawyers before EOIR was expanded earlier this year to add additional grounds of discipline. Here are the most recent statistics on lawyer discipline since 2000: 1017 lawyers disciplined; of which 950 suspended; 90 reinstated 146 expelled from EOIR practice 25 public or private censures 462 warning letters or informal admonitions Now don t forget to schedule that ethics hour each week. Go ahead and open your calendar now to get started , 2012 American Immigration Lawyers Association. All rights reserved. AILA-DC 2012 FALL CONF. 313

6 MARYLAND STATE BAR ASSOCIATION, INC. COMMITTEE ON ETHICS ETHICS DOCKET NO Whether an attorney who is not licensed in Maryland may provide pro bono legal advice and representation on immigration matters to indigent people in Maryland? Your inquiry states that you direct a farm worker-oriented legal clinic at an out-of-state law school. Each spring break you travel with a group of law students and volunteer interpreters to offer know-your-rights and outreach sessions for low income rural immigrant communities located around the Mid-Atlantic region of the United States. These events include one-on-one confidential intake sessions with any individual who want to speak with you. As an experienced immigration practitioner, you and the students under your supervision, offer on-the-spot advice and follow-up representation on immigration matters at no cost to indigent individuals. If representation on state law matters is required, you refer the individuals to appropriate attorneys licensed in the state where the outreach is being conducted for pro bono assistance. You have been asked to provide such outreach services in Maryland but are concerned whether your activities, as described above, would constitute the unauthorized practice of law inasmuch as you are licensed to practice law in Pennsylvania and New York, but not in Maryland. You state that such activities are specifically permitted under Virginia law and that you conduct activities in Delaware in reliance upon Delaware RPC 5.5(d)(2). You specifically ask for an opinion regarding whether your proposed outreach in Maryland would comport with Maryland's unauthorized practice rule and for any necessary steps you should take to ensure compliance. Under Maryland law, one may not practice law in Maryland unless that person is licensed to do so by the Maryland Court of Appeals. See Md. Code Ann., Bus. Occ. & Prof., (a). Section (h) of the Code provides the definition of the practice of law. Our committee, however, does not issue opinions regarding whether particular activity, such as you describe, constitute the unauthorized practice of law. Such a question presents a legal issue that can only be determined by the Maryland Court of Appeals. Regarding the ethical aspects of your inquiry, Maryland Lawyers Rules of Professional Conduct 5.5 generally deals with the unauthorized practice of law and at paragraph (d)(2) provides: A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. The comments to Rule 5.5 (d)(2) states that a non-maryland lawyer may provide legal services in this jurisdiction when authorized to do so by federal or other law, which include statutes, court rule, executive regulation or judicial precedent. Cmt. 18. Therefore, you should review federal and state laws, regulations and legal precedents to determine if any federal law or other law of this jurisdiction permits you to provide immigration legal services in Maryland. Ramirez v. England, 320 F.Supp.2d 368, 377 fn.9 (D.Md. 2004), which addressed Rule 5.5(d)(2), may also be useful reading. AILA-DC 2012 FALL CONF. 314

7 If you conclude that federal law or other law of this jurisdiction authorizes you to practice immigration law in Maryland, then under Rule 5.5 you may do so without violating the Maryland Rules of Professional Conduct even though you are not a member of the Maryland Bar. Most recently, the Committee has considered the question of whether an attorney who is licensed in another jurisdiction, but not licensed in Maryland, may open a practice in Maryland limited to only immigration matters. Ethics Docket No This opinion, which will be made available on may be of assistance to you. Also of note, the Committee previously addressed the concerns of a non-maryland attorney in the context of immigration practice in Docket (Whether an attorney not licensed to practice in Maryland may conduct a limited immigration practice in Maryland). Although not directly addressing your specific situation, Docket identified other issues and opinions concerning the unauthorized practice of law: Ethics Docket (may an attorney under "inactive" license status of another state maintain an office in Maryland and practice only before the EEOC); Ethics Docket (whether attorney not admitted to practice in Maryland may practice before non-maryland courts from office located in Maryland); Ethics Docket (attorney not a member of Maryland Bar practicing trademark law in Maryland). Again, copies of these opinions are available at REFERENCES: Maryland Rules of Professional Conduct 5.5. Ramirez v. England, 320 F.Supp.2d 368, 377 fn.9 (D.Md. 2004). Md. Code Ann., Bus. Occ. & Prof., (h), (a). Ethics Dockets Docket , , , , DATE APPROVED: May 9, 2012 AILA-DC 2012 FALL CONF. 315

8 Are You (Marketing) Online? The Applicable Rules of Professional Conduct that You Must Know by Mayabanza S. Bangudi, Esq. 1 Point, click... violation? Unfortunately, it is that easy for an attorney to unwittingly violate the attorney's state ethical rules while marketing online. The ease with which potential clients and monitoring bodies can access materials that attorneys post online only makes potential ethical hotspots more prolific. The Maryland Lawyer's Rules of Professional Conduct ( MRPC ) apply regardless of an attorney's form of advertising. 2 The danger lies not only where attorneys do not know the rules, but also when they do not realize that what they are doing online can constitute advertising. This article addresses some rules that are applicable regardless of the form of advertising, as well as ethical issues particularly relevant in certain forms of internet marketing. Website The MRPC provide that attorney advertisements must include the name of the attorney responsible for the content. 3 The MRPC further provide, in Rule 7.1, that "a lawyer may advertise services through written, recorded or electronic communication, including public media." 4 The rules further clarify that, "[a]ny communication made pursuant to this rule shall include the name of at least one lawyer or law firm responsible for its content." Therefore, regardless of whether an attorney advertises via paper flier, bulletin board, internet site or , the attorney should include the name of the responsible attorney. As such, an attorney advertising via a website, whose firm name consists of a generic trade name, or something other than an attorney's name, should make an extra effort to disclose the responsible attorney's name on the firm's website. The MRPC states that "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. 5 A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. 6 For example, the Committee on Ethics of the Maryland State Bar Association, Inc. 1 Mayabanza S. Bangudi, Esq. is the owner of Bangudi Law LLC ( where her practice includes immigration, international family, and small business law. She is a member of the American Immigration Lawyers Association and Secretary of the Maryland State Bar Association's Immigration Law Section. Ms. Bangudi received her Juris Doctor at Georgetown University Law Center in Washington, DC and is admitted to practice in Maryland and the US District Court for the District of Maryland. She can be reached at [email protected]. 2 See, eg., Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Lawyer Advertising on Daily Deal Websites, available at (stating that lawyers should recognize that internet based advertising is governed by the same rules which govern print or public media advertisements ). 3 MD. LAWYER'S R. PROF'L CONDUCT 7.2(d). 4 MD. LAWYER'S R. PROF'L CONDUCT MD. LAWYER'S R. PROF'L CONDUCT 7.1. Copyright 2012 Bangudi Law LLC. All rights reserved. 1 AILA-DC 2012 FALL CONF. 316

9 ("Committee on Ethics"), has opined that attorneys may not refer to themselves as "experts" or "specialists." 7 Blogs Particularly in the ever-changing and heavily regulated world of immigration law, blogging about recent changes and news can be very useful to attorneys and consumers alike. To the extent that a blog constitutes an attorney advertisement, the attorney should adhere to state professional conduct rules. 8 The MRPC states that, "[a] copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used. 9 Because a blog can be considered a marketing tool, updates to an attorney's blog could be considered a marketing change that should be stored in the same manner that an attorney stores all marketing material. Social Media Sites An attorney might not think that he/she is advertising on social media sites such as LinkedIn, Facebook, or Twitter, but the attorney's state Attorney Grievance Commissions might not agree. If an attorney promotes the attorney's legal services on such a site, that use could be considered to be advertising. Posting about a recent court victory, whether it is a short victory 'tweet' or a lengthy piece, for example, could be seen as an advertisement. 10 Screen shots of attorney websites and social media sites can be used by anyone - including a state's Attorney Grievance Commission. Client Testimonials Regarding client recommendations on these sites, the Committee on Ethics has stated that the rules against creating unjustified expectations "would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer s record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation 6 See Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Whether a Lawyer May Advertise that He "Specializes" in a Certain Area of Practice, available at (discussing MRPC Rule 7.1). 7 See Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Whether a Lawyer May Advertise that He "Specializes" in a Certain Area of Practice, available at 8 Whether such a blog is contained directly on an attorney's website or links from it, a blog should include a disclaimer stating that the information contained therein is for informational purposes only and does not constitute legal advice. 9 MD. LAWYER'S R. PROF'L CONDUCT 7.2(b). The rules do not contain a specific format requirement. Attorneys may be in compliance by saving PDF images of their advertisements, storing them electronically on their server, or at a minimum by keeping a log of all changes made. 10 See, eg., Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Advertising - Use of Client Testimonials, available at (discussing generally the propriety of advertisements discussing recent court victories). Copyright 2012 Bangudi Law LLC. All rights reserved. 2 AILA-DC 2012 FALL CONF. 317

10 that similar results can be obtained for others without reference to the specific factual and legal circumstances." 11 If an attorney advertisement includes information about victories, the attorney should provide context. For example, the Committee on Ethics has noted that an attorney whose advertisement includes references to a recent court victory, where the case is on appeal, would be misleading the public if the attorney did not also reference the appeal. 12 Third Party Discount Pricing Sites Special ethical rules apply when an attorney has accepts to consult with and/or provide legal services to a consumer who located the attorney through a third party discount site, such as Groupon. These sites operate by accepting fees directly from a potential client, and then forwarding a portion of those fees to an attorney who agrees to consult with and/or provide certain legal services to the potential client. Along with making sure an attorney s ethical rules allow for such participation, 13 an attorney must be careful when returning client fees when paid through the site. The Committee on Ethics has opined that when an attorney carefully adheres to the Rules of Professional Conduct, including those governing independent judgment as well as advertising, that attorney's use of third party discount service sites may not constitute an ethics violation, per se. 14 However, it noted that attorneys should exercise caution when electing to use discount service providers. In addition, the Committee on Ethics has been clear that use of third party discount pricing sites does not absolve an attorney from otherwise applicable ethical rules. Even after an attorney has researched and determined that the structure of a particular third party discount site may not lead to an ethics violation, an attorney must follow all advertising rules. This includes as follows: (1) disclosing the nature of the site and the conditions that apply to the discount offer, (2) consulting with the potential client and determining the best way to proceed in the case, (3) declining representation where an attorney discovers a conflict of interest and, in the case of declining representation for whatever reason properly returning the potential client's fee. In Maryland, if a circumstance arises in which fees must be refunded, the attorney must provide the 11 Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Advertising - Use of Client Testimonials, available at (emphasis added). 12 Id. Attorneys using such testimonials should include a clear disclaimer with language to the effect that past results are not an indicator of future success. In addition, it is important an attorney seeks permission from a clients to use the client's recommendation or testimonial in a an advertisement. For example, if a client has recommended an attorney on one site, such as LinkedIn, which has a built-in recommendation feature, the attorney should obtain that client's permission before duplicating the testimonial on his/her website. It is best to use the client's own wording. If an attorney edits the recommendation, it could be considered misleading to post the recommendation without the notation that the attorney revised it. 13 Third party discount sites can implicate fee sharing rules, which are beyond the scope of this article, but nevertheless merit research and investigation by the attorney before the attorney enlists the services of such a site. See, eg. Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Lawyer Advertising on Daily Deal Websites, available at 14 See Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Lawyer Advertising on Daily Deal Websites, available at Copyright 2012 Bangudi Law LLC. All rights reserved. 3 AILA-DC 2012 FALL CONF. 318

11 consumer all of the fees for the service that the consumer paid, either to the site or to the either, including those fees that the attorney did not receive. External Marketing Sites Solo and small firm practitioners have likely grown accustomed to internet marketers seeking their business and promising a world of new clients. But whether an attorney considers using such services to create a new website for his/her firm, or to simply include a small blurb on their site regarding your services, the end product could be viewed as constituting an advertisement. Avvo, Google AdWords, and others are examples in this category, and if an attorney promotes him/herself on such a site, the attorney should assure that the listing or profile is in compliance with ethical rules. Conclusion With the internet, access to potential clients has increased exponentially. With that, though, has come an increase in exposure to ethical rule violations. Whether an attorney realizes it or not, if an attorney has an online presence, that attorney may very well be advertising. An attorney should review his/her state s ethical rules and make sure that the advertising material online that is attributable to the attorney s firm complies with his/her jurisdiction's ethical rules. And live to advertise another day. Copyright 2012 Bangudi Law LLC. All rights reserved. 4 AILA-DC 2012 FALL CONF. 319

12 HOW TO WALK THE ETHICAL LINE BEING LESS STRESSED OUT by Cyrus D. Mehta, Howard S. Myers, and Kathleen Campbell Walker * The fact patterns, which we address below, reflect situations in which the immigration attorney is obligated to give advice without crossing the line. This article, however, is not about taking the lawyer to the edge of the precipice, without pushing him or her over. Despite the complexity of the client s situation, it is always prudent to remain well within the boundary line of what is ethical. Since this boundary line is often amorphous and can shift, subject to varying interpretations, why should the lawyer take a risk? Moreover, walking this ethical line can potentially cause extreme stress and possible legal exposure for the immigration lawyer, but it need not if the lawyer possesses an in-depth knowledge of the ethical rules that enable him or her to stay well within that boundary. Our fact patterns may initially cause the lawyer stress, and perhaps panic as well, but once they are viewed from an ethical perspective, the advice that flows from the benefit of such an analysis can be a win-win for both the lawyer and the client. The lawyer s reputation is enhanced, both with the client and the government; and the client also obtains the most realistic advice, which in the long run can only benefit him or her. So dear readers, put down your coffee cups as we try to help steer you though the intricacies of immigration law and ethics. Once you see the end of the tunnel of this journey, we hope you would have gained a healthy dose of confidence as well as competence! FACT PATTERN 1 THE FAST TRACK QUESTION You just finished a presentation to a local civic group on immigration in the United States. One member of the audience, a seemingly prosperous gentleman, approaches you with a quick question. He has fallen in love with a woman from the Philippines and wonders whether it is better to have her come into the United States on a B-2 visitor visa and marry him or is there a faster way for her to get a green card from the Philippines. How do you handle the question and afterwards? Creating the Attorney-Client Relationship 1 The Context The ethics of an attorney-client relationship are governed by Rules of the Model Rules. It is common for an attorney to be offered the opportunity to enter into a lawyer-client relationship in a social setting. * Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the managing member of Cyrus D. Mehta & Associates, PLLC. Mr. Mehta is the chair of AILA s National Pro Bono Committee and former chairman of the board of trustees of the American Immigration Law Foundation ( ). He received the AILA 2010 President s Commendation for leadership of AILA s pro bono efforts. Mr. Mehta is the author of several articles on contemporary immigration topics, including on ethics. Howard S. Sam Myers has more than 30 years experience practicing immigration law. He has been past president and Board of Governors member of AILA. He has testified before the U.S. Congress on immigration law and has advised members of the Minnesota State legislature on immigration law policy. He is listed in The Best Lawyers in America in Immigration Law and was recognized in Who s Who Legal 2007 through 2010 as one of the top 15 lawyers in the world most highly regarded in corporate immigration law. He was honored as a Fellow of the American Immigration Law Foundation. Kathleen Campbell Walker is a former national president ( ) and general counsel ( ) of AILA. She is chair of the Immigration Practice Group of Cox Smith Matthews Incorporated and has been practicing immigration law since She is board-certified in immigration and nationality law by the Texas Board of Legal Specialization. In 2010, she received the AILA National Service Excellence Award. She has testified multiple times on immigration and border security issues before Congress and the Texas legislature. 1 References in this article will be to the ABA s Model Rules of Professional Conduct (Model Rules) and these will be cited in this advisory. Ethics rules may vary in your jurisdiction, so be sure to check them against the correlated rule cited in this practice advisory. 51 Copyright 2011 American Immigration Lawyers Association AILA-DC 2012 FALL CONF. 320

13 Usually, however, that context is inappropriate to properly create the relationship. 2 Legal advice is based on an application of law to facts, performed within the scope of a confidential setting. Here, the attorney may provide general information, but the front of a podium following a seminar or speech is not the place to provide legal advice. Either recommend that the individual retain his own attorney, or arrange for a consultation later. Beyond the ethics of creating the attorney-client relationship is the very important contractual or liability aspect of doing so. Liability has been found in many situations where caution was not observed by an attorney dispensing information when the client relied on it as legal advice. 3 The appropriate place for you to begin the relationship is in your office or in an equivalent confidential context. It is possible to establish a confidential attorney-client relationship by telephone, , or in other written format, but the ground rules should be established and the client s and attorney s expectations made clear. It is crucial, however, that the client be advised, in writing, of the existence, conditions, scope, confidentiality, and basis of cost of representation. The ethics of creating and maintaining confidentiality surrounding client relationships in our complex social media milieu is constantly receiving the attention of ethics authorities and courts, must be said to be in a state of evolution, and cannot be said to be well-established. 4 A California court recently held that an employee who ed her attorney from her employer s computer did not have a reasonable expectation of confidentiality where she was aware of a company s published policy of its right to monitor traffic. 5 The court analogized the communication as,... akin to consulting her lawyer in her employer s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. In the present case, there ought to be a written retention agreement, an understanding concerning confidentiality of attorney client communications, an explanation of costs and clear expression of when and under what circumstances the attorney-client relationship may be terminated. Who Is Your Client? In marriage-based immigration cases, this point is always critical to establish. In the current example, it is fraught with complexity. This example includes not only the identity of whom you represent but also actual and potential conflicts of interest. It is governed by Model Rules 1.2 (Scope), 1.6 (Confidentiality), 1.7 and 1.8 (Conflicts of Interest), 4.3 (Dealing with Unrepresented Persons). Although it is possible, and usually desired by the couple, for the attorney to represent both parties to the prospective marriage, the attorney ought to point out the real possibility that, should a conflict of interest arise, the attorney must withdraw from all representation. This is not to suggest that a conflict cannot be resolved or waived, but there may be situations where a waiver is no longer effective if the attorney can no longer competently continue the representation of one or both parties, and the best option under such circumstances is to withdraw. This comes from a combination of Rule 1.7(a) where the continued representation would be directly adverse to another client; or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client; and of Rule 2 Here it is appropriate to note that communications with prospective clients are governed by Rule 7.3 (Direct Contact with Prospective Clients), which prohibits direct personal or electronic contact with prospective clients,...when a significant motive for the lawyer s doing so is pecuniary gain unless the person contacted is a lawyer or has a close family, personal or prior professional relationship... subject to some qualifications. 3 See D. Schnell, Note: Don t Just Hit Send: Unsolicited and the Attorney-Client Relationship, 17 Harv. J. Law & Tech. 533, 538 (2004). See e.g., Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 693 (Minn. 1980); Matter of Petrie, 154 Ariz. 295, 742 P.2d 796, 800 (1987); Moen v. Thomas, 682 N.W.2d 738 (N.D. 2004). 4 See 5 Holmes v. Petrovich Development Company, LLC The difficulty of this issue in a rapidly expanding social media environment is illustrated by the U.S. Supreme Court in Ontario v. Quon 560 U.S. (2010) holding that an individual does not have an expectation of privacy in a text message transmitted in a city issued pager where a police department had no policy concerning privacy. AILA-DC 2012 FALL CONF. 321

14 1.16 requiring termination of representation if the attorney s continued representation would violate an ethical rule. It is important for the attorney to explain the potential causes of conflicts, ranging from the process becoming too risky or expensive for one of the parties, the couple s feelings toward each other changing, or facts coming to light that have not previously been disclosed. It is also important, in situations such as the one presented in this hypothetical, that the attorney explain his or her obligation to present true facts to the agency and to correct any material misrepresentations that may exist in any submissions to the agency (see discussion below). What Is the Objective of the Representation? This issue involves a combination of ethical considerations and practical considerations in being realistic with the client. What the clients want here is the fastest, most economical issuance of a desired visa. This objective is unlikely to be a realistically achievable outcome in a case like this. There will be skepticism on the part of the U.S. Citizenship and Immigration Services (USCIS), the embassy, and an evolving set of facts about each of the couples backgrounds. For that reason, before assessing the costs, likelihood of success and process, the attorney and his staff should conduct a thorough interview of the client concerning past marital or premarital relationships with these or other individuals, past behavior that could mitigate against visa issuance, and other factors that would implicate INA 212 eligibility. The early stage of a legal representation is the most important time to be bluntly realistic with the client or clients. This discussion sets their expectations for the future. If it is going to be a rough ride through the system, say so. Minimizing or marginalizing difficulty does not serve to create a positive an attorney-client relationship in the end. After serious evaluation and consideration, you have decided to undertake representation of the couple to secure a fiancé visa. You begin preparation of the supporting documents. Your client asks that you draft all of the supporting affidavits in such a way as to meet what you believe will be the agency s expectations since You are the expert. What do you do? The Attorney as Advocate In the field of immigration law, we are regularly confronted with reconciling our role as advocate to that of an officer of the tribunal committed to candor and respect toward it. 6 These responsibilities are explained in Rules 3.1 through 3.9. While it may be tempting for an attorney and his staff to simply dive headfirst into drafting supporting affidavits, there are some important cautionary rules we should follow. First, the affidavits must reflect the true facts, as opposed to the facts that the advocate wishes were true. This consideration can easily be implemented into the case preparation. After fully advising a client concerning the issues at hand, it is perfectly appropriate to require the client(s) to prepare written details of the relevant facts and substantiate them with independent documents, copies of letters, s, photos, supporting statements from other witnesses, who know the couple as to the couple s history and bona fides of their commitment to each other. Requiring the client to collect evidence supporting the elements of a fiancé petition not only enables the attorney to not only develop an independent understanding of the facts, but also serves to provide the agency with corroborating evidence. 6 An adjudicative entity within U.S. Citizenship and Immigration Services (USCIS), such as a service center, would probably fall within the definition of a tribunal under Model Rule 1.00(m). Even if it did not, it does not absolve a lawyer from the duty of candor, as the lawyer still must be truthful towards third parties under Model Rule 4.1 and 1.6, and more importantly, the lawyer could also face criminal sanctions under an assortment of federal penal statutes. A thorough analysis of the attorney s responsibilities of candor to the tribunal is presented at C. Mehta, What Remedial Measures Can a Lawyer Take to Correct False Statements Under New York s Ethical Rules? 12th Annual AILA New York Chapter Immigration Law Symposium Handbook (AILA 2009 Ed.) [hereafter referred to as Mehta]. AILA-DC 2012 FALL CONF. 322

15 From an ethical point of view, the attorney is simply complying with Rule 3.3 prohibiting an attorney from,... knowingly: (1) mak[ing] a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer... Rule 1.0(f) defines knowingly and knows as actual knowledge of the fact in question, which may be inferred from the circumstances. Moreover, in an immigration proceeding, the attorney must comply with 8 CFR Secondly, the attorney should impress on the client that the more substantiating evidence the client can produce, the more likely the petition will be successful. Here is it important for the attorney to reflect his or her professional responsibilities that are independent from what may be the client s understandable unfettered desire to win his or her case. The Model Rules significantly limit the attorney from becoming a witness in the case. 8 There are certainly situations in which the client and attorney have collaborated so often in documenting a case that each knows what the facts are and the attorney can take a greater role in drafting supporting documents for the client s review. Nevertheless, it is essential that the attorney be operating from the basis of what he or she knows to be true and to what facts he or she knows that the client will truthfully be able to attest. Finally, it is often important, in the initial consultation, and even in the engagement letter, for the attorney to impress on the client the attorney s ethical obligation to correct any false statements of material fact or law previously made to the tribunal. This approach may serve to temper the client s incentive to invent or suppress relevant facts. FACT PATTERN 2 YOUR CLIENT LIED After the fiancé petition has been filed, but before it has been adjudicated, the attorney learns, through a former girlfriend of the prospective husband, that several material statements made in the supporting affidavits were false. What should the attorney do? To an attorney who has prepared her client well for representation, this evolution of our hypothetical may not present as difficult a problem, but the attorney should be careful to consult her jurisdiction s adoption or not of Model Rule 3.3(a)(1) and (3) and consider her actions within the scope of her jurisdictions applications of Model Rules 3.3(a)(1), (a)(3), 4.1, 1.2 and We have reflected the duty of the attorney in two Model Rules, 3.3(a)(1), summarized above, and 1.6, containing the following exception to the confidentiality rule: A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary... 7 A practitioner who falls within one of the following categories shall be subject to disciplinary sanctions in the public interest if he or she: (c) Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an officer or employee of the Department of Justice), concerning any material and relevant matter relating to a case, including knowingly or with reckless disregard offering false evidence. If a practitioner has offered material evidence and comes to know of its falsity, the practitioner shall take appropriate remedial measures; Mehta, supra, at page 5, discusses the difference between 8 CFR (c) and the New York rule 3.3 as the federal regulation includes both a knowing and reckless disregard standard whereas the New York rule only contains a knowing standard. The New York rule coincides with the Model Rule, in the absence of a reckless disregard standard and defines knowing as...actual knowledge of the fact in question. A person s knowledge may be inferred from circumstances. 8 Model Rule Instructive discussions of this situation may be found at where the author discusses the duty in the context of appellate judicial argument and /february/practicetips.htm where a similar discussion is presented. See also, discussing these issues in criminal law context. Compare where the rules of Arizona are compared with the Model Rules. AILA-DC 2012 FALL CONF. 323

16 (2) To prevent the client from committing a criminal or fraudulent act in furtherance of which the client has used or is using the lawyer s services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take suitable action; (3) To prevent, mitigate, or rectify the consequences of a client s criminal or fraudulent act in the commission of which the lawyer s services have been or are being used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action; Model Rule 1.2(d) states: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Model Rule 1.6 above allows the attorney to confront his client with the asserted misrepresentations and persuade the client to take corrective action. 10 Well enough if the material facts are shown to be false, but what if you do not believe the witness who asserts the falsity of the evidence or do not believe your client who claims that the facts are as he stated them? This leaves the attorney with a difficult decision. If the attorney believes his client that the facts are true, then, under the rules, it would seem that he must respect the confidentiality of his relationship and duty toward his client and rely on the evidence. But, his reliance ought to be reasonable and justified by a thorough inquiry. If he does not believe his client s claim that the alleged misrepresentation is true, then it would seem that the attorney has two options, to withdraw or to correct the record. 11 Should the attorney with such doubts about his client s veracity simply withdraw, without correcting the record, query what impression is left with the agency? Has the attorney taken appropriate remedial measures under 8 CFR ? One thing that we can learn from this situation is that an attorney who has notified his or her client at the beginning of the representation that the attorney s interpretation of legal and ethical rules compel the attorney to disclose conduct that he or she believes or reasonably suspects to constitute misrepresentations to the agency is going to be in a better position to withdraw than one who has not. FACT PATTERN 3 A FUTURE CURE OR ONE THAT DOES NOT CURRENTLY EXIST Client A entered the United States without inspection in February 1, 2002 and is married to a spouse, who also entered the United States with him at the same time and in the same manner. They have three U.S. citizen children. A labor certification was filed on April 30, 2001 on behalf of Client A, which was subsequently abandoned. After examining all the facts and options, immigration attorney determines that there are no available options at this time. Client A asks immigration attorney whether he can continue to stay in the United States in violation of the law until Congress passes Comprehensive Immigration Reform (CIR)or until his eldest child turns 21 (she is currently 19). Client is aware that he can also apply for cancellation of removal; only if an NTA is issued on or after February 1, 2012, and wants to know how to best minimize risks to avoid apprehension before the 10- year anniversary of his arrival into the United States. Again, the Role of the Attorney Immigration practitioners commonly encounter a client who is undocumented and asks about options to obtain status. If in the event there are no options, the next question is whether there are any options that might arise in the future. In the course of counseling the client who is not in status, can the attorney recommend that this person remain in the United States in this unlawful status until a benefit may accrue in the near or 10 Mehta, What Remedial Measures Can a Lawyer Take to Correct False Statements Under New York s Ethical Rules? 12th Annual AILA New York Chapter Immigration Law Symposium Handbook (AILA 2009 Ed.) at page 6 7, discusses the attorney s ability to advise the client concerning the significant adverse consequences arising from the misrepresentation. 11 Id. at page 5, discusses the option of a noisy withdrawal in connection with the standards of 8 CFR AILA-DC 2012 FALL CONF. 324

17 distant future? Even if the attorney may not directly advise the client to remain in the United States in violation of the law, would an attorney advising the client of a potential future immigration law be implicitly encouraging the client to remain in violation of the law, and also be implicating any ethical obligations? The Paradox This situation indeed is one of the great paradoxes in immigration practice, since an individual who is in undocumented status need not expect to remain eternally undocumented. A classic example is one who is grandfathered under 245(i) of the INA. So long as an immigrant visa petition or labor certification was filed on behalf of this person on or before April 30, 2001, that was approvable as filed, and if the principal applicant, for whom the labor certification was filed was physically present in the United States on December 21, 2000, in cases where the labor certification or petition was filed after January 14, 1998, 12 this individual can ultimately adjust status in the United States when she is eligible to do so. 13 In the meantime, while this individual is waiting to become eligible for adjustment of status, assuming that the physical presence requirement on December 21, 2000, is met for certain applicants, she continues to remain unlawfully in the United States and may also be placed in removal despite having an approved petition, but unable to adjust status until the priority date becomes current. We encounter yet another paradox when such a person who is potentially eligible under 245(i) is issued a Notice to Appear and is placed in removal proceedings. The Board of Immigration Appeals has held that it may be an abuse of discretion for an Immigration Judge to deny a continuance to a respondent who has a prima facie approvable visa petition, in both the family and employment context, and is also potentially eligible for adjustment of status. 14 Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria, such as by being physically present in the United States on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating exceptional and extremely unusual hardship to the alien s spouse, parent, or child, who is a citizen or a permanent resident. 15 Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, 16 or a person can obtain Temporary Protected Status, if a calamity 12 8 CFR (a)(ii). In 1994, Congress passed special adjustment of status provisions, commonly referred to as 245(i). Department of Commerce, Justice, and State Appropriations Act, Pub. L. No , sec. 506(b), 108 Stat (1994). The new INA 245(i) provided broad relief for persons, who were otherwise ineligible for adjustment, thus allowing them to become LPRs without having to go the route of the immigrant visa process abroad. In exchange for this benefit, they were required to pay a surcharge fee. As originally enacted, 245(i) allowed most persons who had a basis for becoming LPRs, and who were otherwise admissible to become LPRs, to adjust upon payment of a fee of $1,000. This grandfathering provision also applied to children who aged-out (i.e., turned 21) while the application was pending. Although the program ended in January 1998, persons who had qualified under 245(i) as of that date were grandfathered in. On December 15, 2000, Congress extended the grandfathering date to April 30, CFR (a)(3); Memo, Yates, Assoc. Dir. Operations, USCIS, HQOROPD 70/23.1 (Mar. 9, 2005), published on AILA InfoNet at Doc. No (posted Mar. 14, 2005). Note the physical presence requirement in the United States applies only if the principal s labor certification or INA 204 petition was filed after January 14, 1998, and on or before April 30, See Pub. L. No , title I, sec. 111; 111 Stat. 2440, (Nov. 26, 1997).] The Legal Immigration Family Equity Act Amendments of 2000, Title XV of Pub. L. No , sec (114 Stat. at 2764) (enacted Dec. 21, 2000) (the LIFE Act Amendments) extended the 245(i) (8 USC 1255(i)) sunset date from January 14, 1998, to April 30, That act also requires that, if the qualifying visa petition or labor certification application was filed after January 14, 1998, the alien must have been physically present in the United States on the date of enactment (Dec. 21, 2000) to be eligible to apply for adjustment of status under 245(i). 14 See Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Rajah, 25 I&N Dec. 127 (BIA 2009). 15 INA 240A(b). 16 Pub. L. No , title XI. AILA-DC 2012 FALL CONF. 325

18 were to befall her country. 17 Millions of undocumented immigrants, including children, who have fallen out of status or entered without any status, are waiting for Congress to pass legislation that could legalize their status. Immigration lawyers also advocate on their behalf, and help them draft petitions and accompany them to the offices of elected representatives. The following extract from the U.S. Supreme Court s decision in Plyler v. Doe, 18 which held that undocumented children could not be deprived of a public education, is worth noting: To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen. Zealous Representation Within the Boundaries of Law and Ethics Against this backdrop, the practitioner must be mindful of certain limitations. On the one hand, a lawyer is under a duty to act zealously. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, A lawyer shall act with reasonable diligence and promptness in representing a client. Comment 1 to Rule 1.3 provides, A lawyer should take whatever lawful and ethical measures are required to vindicate a client s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client s behalf. On the other hand, a lawyer can only zealously represent his or her client within the bounds of the law. Under Model Rule 1.2(d), A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law. The key issue is whether counseling a client to remain in the United States, even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules. While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither criminal nor fraudulent conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA 275, it is no longer a continuing criminal violation to remain in the United States after the EWI. Although being unlawfully present in the United States may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation where an undocumented noncitizen can eternally hope to gain legal status, a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the United States. Considering and Presenting the Options Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the United States in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the United States, in certain circumstances, does constitute criminal conduct. For instance, if the client in the above hypothetical has received a final order of removal and has willfully failed to depart the United States within 90 days from the order, INA 243 renders such conduct a criminal felony with imprisonment of not more than four years (or 10 years if the person is deportable under the smuggling criminal offence or criminal/falsification of documents grounds). 19 An immigration attorney may 17 INA U.S. 202 (1982). 19 INA 243(a)(1) provides, as follows: Penalty for failure to depart: continued AILA-DC 2012 FALL CONF. 326

19 encounter a client who has a final removal order and willfully fails to depart in the hope that his U.S. citizen child, who is 19 years, will turn 21 years in two years, which would enable him to potentially reopen the order based on his ability to apply for adjustment of status as an immediate relative in the event that the government consents to joining in a motion to reopen. 20 If this client were to depart the United States prior to his son turning 21 years, he would derive no benefit for the next 10 years as the client would have most likely triggered the 10-year bar under INA 212(a)(9)(B)(i)(II). He would also be ineligible for a waiver under INA 212(a)(9)(B)(v) as a citizen child is not a qualifying relative under this provision. The attorney, in this situation, is truly caught in a conundrum. She cannot advise the client to evade the authorities who are seeking to remove him, and at the same time, if the client does present himself and gets removed from the United States upon the attorney s advice, he has lost out on the opportunity to adjust status through his U.S. citizen son when he turns 21 years. One should be mindful, though, of the exception at INA 243(a)(2), which provides: It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien s release from incarceration or custody. It is unclear whether taking proper steps for the purpose of securing cancellation of or exemption from such order of removal would cover our hypothetical client who would need to wait for two more years until his citizen son turned 21 in order for him to file for adjustment of status and move to reopen the order. Notwithstanding this exemption, the attorney should not advise her client under such circumstances to fail to depart after the final order or evade detection as that might be assisting a client in conduct that is criminal, and the attorney could also be potentially implicated criminally as a conspirator. However, as addressed in Model Rule 1.2(d), a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law. The situation becomes even more stark when an immigration attorney is approached by a client who after receiving a final removal order has re-entered the United States. INA 276 refers to an alien who is at any time found in the United States after entering or attempting to enter following the order. So, one who remains following an illegal reentry after removal is arguably committing a continuing crime, and there may also be no statute of limitations. Even here too, such a client can potentially apply for narrow relief such as withholding of removal or may challenge the reinstatement order 21 through a petition for review in a circuit court. 22 Under such circumstances, it is doubtful whether the attorney is encouraging a client to persist with the criminal conduct to remain in the United States in violation of 276 while challenging an infirm reinstatement of a removal order or by establishing that the client will be persecuted, if returned to the original country. Even so, while the attorney may zealously represent such a client, she must be careful to not in any way encourage the continuing criminal conduct by directly advising that the client to avoid detection by changing addresses or the like. Finally, the immigration attorney should never misrepresent the client s situation or location, when speaking to an immigration official. In general, any alien against whom a final order of removal is outstanding by reason of being a member of any of the classes described in section 237(a), who willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal under administrative processes, or if judicial review is had, then from the date of the final order of the court, i. willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the alien s departure, ii. connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien s departure pursuant to such, or iii. willfully fails or refuses to present himself or herself for removal at the time and place required by the attorney general pursuant to such order, shall be fined under title 18, USC, or imprisoned not more than four years (or 10 years if the alien is a member of any of the classes described in paragraph (1)(E), (2), (3), or (4) of section 237(a), or both CFR (c)(3)(iii); (b)(4)(iv) CFR See Debato v. Attorney General, 505 F.3d 231 (Oct. 2007). AILA-DC 2012 FALL CONF. 327

20 Even if presenting information to such an official, such as an ICE official who needs to know the whereabouts, this situation does not implicate an attorney s duty of candor towards the tribunal under Model Rule 3.3; but a lawyer is still precluded from making a false statement of material fact or law to a third person under Model Rule 4.1. In closing, Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client in the above hypothetical: Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent, in and of itself, make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. But Is the Holy Grail of CIR an Option? The example raises the point of the possible impact of comprehensive immigration reform (CIR), if ever passed into law in some form, as a potential future cure to the client s predicament as well. Others would characterize a resurrection of INA 245(i) as CIR as well. For those who do not appear to qualify for any relief, some attorneys might suggest the filing of a labor certification to serve as a place holder, if INA 245(i) is resurrected or reapplied or if some future CIR legislation, provides for benefits for those with an approved labor certification. It is important to remember that on July 16, 2007, all labor certifications expire 180 days from the date of issuance unless an I-140 Immigrant Petition is filed, based on the certification, before the expiration of the 180 days from the date DOL granted the certification. 23 Certifications issued prior to July 16, 2007, expired if no I-140 is filed within 180 days of July 16, 2007, or on January 12, Of course laws can change and for those who managed to have qualifying and legitimate petitions or labor certifications submitted, their clients had potentially more remedies than others. Consultations between a client and a lawyer concern the application of law to fact when making a decision to file a petition or labor certification. In addition, it is important to remember that benefit filings can result in potential removal actions being taken against the client. 24 If an attorney is suggesting a filing on a theory of a potential new law making the cost of the filing worth the risk and the potential treatment as a nullity by current law, the disclosure of this fact must be in writing and signed by the client. Some would argue the client would also be advised to consult with yet another lawyer before choosing to execute such an acknowledgement knowingly. Other attorneys would suggest that not charging a fee for such speculative filings is the appropriate approach, but whether the fee is charged or not, the potential consequences of acting upon such legal counsel will be real. Filing based on non-existent law is not a course of action we would recommend based on the considerations outlined in this section. To that end Model Rule 1.2 as to scope of representation and 3.1 as to meritorious claims and contentions should be consulted along with applicable state bar rules. In pertinent part of Rule 3.1 provides that, A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. As already noted, Model Rule 1.2(d) provides that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law CFR See USCIS ICE Memorandum of Understanding as to the Issuance of NTAs, published on AILA InfoNet at Doc. No (posted Oct. 1, 2010) at p. 14. AILA-DC 2012 FALL CONF. 328

21 FACT PATTERN 4 WRESTLING THE INA 214(B) POLTERGEIST AT ENTRY Client is a U.S. citizen is a university professor, who wishes to immigrate his Mexican citizen parents to the United States as soon as possible due to the violence in Ciudad Juarez where they have lived for over 50 years. Client has heard that if his parents possess laser visas (i.e., B-1/B-2/BCC), they can apply for admission to the United States using their laser visa for no more than a 30-day visit within a 25-mile perimeter of the border (i.e., Texas not Arizona) and then apply for adjustment of status within the 30 days based on their U.S. citizen son s I-130 petition. 25 They ask if there are any risks to this strategy that they heard about recently from a friend, who successfully used it. Identifying Issues 1. INA 214(b) This section of the INA provides that all applicants for admission to the United States are presumed to be immigrants until they establish to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he or she is entitled to a nonimmigrant status under INA 101(a)(15). The foreign residence requirement is fairly consistent among nonimmigrant visa categories. The INA, however, has a specific exception to this requirement for H-1B, L-1, and O-1 nonimmigrants Expedited Removal Under INA 235(b)(1)(A)(i), a foreign national who is arriving in the United States and who is determined to be inadmissible under INA 212(a)(6)(C) or 212(a)(7) (except an alien for whom documentary requirements are waived under 8 CFR 211.1(b)(3) or 212.1) shall be ordered removed from the United States. 3. INA 274(a) Any person who encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law shall be subject to a fine or imprisonment for 10 years or both for each alien if done for commercial advantage or private financial gain Overstay and INA 222(g) INA 222(g)(1) states that if a foreign national is admitted to the United States based on a nonimmigrant visa and then remains in the United States beyond the authorized period of stay, the visa is voided at the conclusion of the period of stay authorized. So, what happens to a laser visa holder with no I-94 on the 31st day? Is there really a period of authorized stay as with a typical I-94 documented admission triggering INA 222(g) consequences of visa voidance or is the period of authorized stay in this instance more like a duration of status (D/S) admission granted in F-1 student visa cases? Take a look at the April 1, 1999, letter written by then Acting Assistant Commissioner, Michael J. Hrinyak, indicating that those entering on a laser visa without an I-94, should be treated the same as a D/S admission. 28 This approach would mean that unlawful presence would not accrue until a benefit adjudication or a court determination CFR 235.1(h)(1). 26 INA 214(h) (codifying the concept known as dual intent ); INA 214(b), (describing immigrant presumption but providing an exception for aliens admissible in the H and L categories); INA 101(a)(15)(O)(i), 8 USC 1101(a)(15)(O)(i) (defining alien of extraordinary ability, but including no requirement that the alien s stay be temporary) 27 INA 274(a)(1)(B)(i). If not done for commercial advantage or private financial gain, then the prison term is five years. 28 Published on AILA InfoNet at Doc. No (posted Apr ) Although the new Laser Visa, Form DSP-150, bears the designation... and Border Crossing Card, it is primarily a nonimmigrant visa, valid for travel to the United States without a passport from contiguous territory and, when presented with a valid passport, from noncontiguous territory. The issuance of Form I-94 does not alter the nonimmigrant visa nature of the document and subjects admitted with or without an I- 94 are subject to Section 222(g) if they have... remained beyond the period of stay authorized by the Attorney General. However, as a matter of practicality, those subjects admitted on the basis of a nonimmigrant visa, including Form DSP-150, who have not been issued Form I-94, such as those entering for less than 72 hours and remaining within 25 miles of the border, are, in general, not subject to Section 222(g) unless a formal finding of a status violation has been made by the INS or an immigration judge, that resulted in the termination of the authorized period of stay. 29 On the other hand, CBP has been taking the position, in complete contradiction to established USCIS and DOS policy, that a Canadian who is admitted without a visa and I-94 would still be accruing unlawful presence and would not be treated as a D/S continued AILA-DC 2012 FALL CONF. 329

22 HOW TO WALK THE ETHICAL LINE BEING LESS STRESSED OUT Misrepresentation/Fraud at Entry An alien who engages in fraud or willful misrepresentation of a material fact in order to procure a visa is inadmissible. 30 The Department of State (DOS) instructs in the Foreign Affairs Manual that a misrepresentation requires an affirmative act, rather than the failure to volunteer information. 31 To determine whether an alien has made a misrepresentation to obtain a visa, DOS instructs consular officers to apply the 30-/60 day rule. 32 This rule provides that if within 30 days of B-2 visa issuance or entry, the alien: Actively seeks unauthorized employment and, subsequently, becomes engaged in such employment; Enrolls in a program of academic study without the benefit of the appropriate change of status; Marries and takes up permanent residence; or Undertakes any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment; then the alien is presumed to have misrepresented his or her intent at entry. 33 After 60 days, DOS does not consider the alien s activities to constitute the basis for a finding of ineligibility. 34 What to Do? When the attorney is consulted before the anticipated admission or after, he or she must focus on the intent of the parents at the time of their application for admission. What documentation can be obtained to address the intention of the parents at the time of their application for admission. In addition, if the parents have yet to apply for admission, certainly the attorney must consider the potential exposure to suggesting that the parents use a nonimmigrant visa, other than one which allows dual intent, to effectuate an immigrant admission. Is the attorney subject to potential criminal penalty under INA 274A described above? What if the attorney suggests that the parents enter without an I-94 admission and just wait until the 61st day to file for adjustment of status? INA 245(c)(2) provides that for immediate relatives, unlike preference cases for immigrant status, working without authorization or being in unlawful status or violating nonimmigrant status is not a bar to adjustment. How can the attorney explain the decision to file on the 61st or the 90th day? Even with such a filing date, intent at entry as well as the circumstances for admission are still relevant queries. Playing with fraud exposure is playing with ethical fire. It is best to stay away and keep your license as well as improve the possibility of a good night s sleep. CONCLUSION We also suggest that you remember the following like a lawyer s prayer or possible chant or other insomnia cure option as you try to go to sleep each night: No amount of money is worth your license. Always be the boss. Don t let the client control you. Do not accept a case that would compromise your ethics. Assume every client is wired. There is no such thing as an off the record conversation. Know the law very well. A good lawyer may find ethical solutions for the worst of problems after 180 days in the United States. See minutes of AILA National Liaison Meeting with CBP on Dec. 9, 2010, published on AILA InfoNet at Doc. No (posted Jan. 26, 2011). 30 INA 212(a)(6)(C) FAM 40.63, N Cf. INA 274C(f) which notes that for determining document fraud penalties, a falsely made document includes one that fails to state a fact which is material to the purposes for which it was submitted. Under N4.2, Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA 212(a)(6)(C)(i) FAM 40.63, N FAM 40.63, N FAM 40.63, N Copyright 2011 American Immigration Lawyers Association AILA-DC 2012 FALL CONF. 330

23 [Ethics Sample Website Hypothetical] Your XYZ Immigration Lawyer.com* Now Conveniently Located Across from Virginia Asylum Office! Certified and Qualified in Immigration Law You can trust Your XYZ Immigration Lawyer, an attorney with 10 years of experience practicing immigration law. Your XYZ Immigration Lawyer delivers excellent results in the toughest cases and boasts a 100% success rate in Washington and Baltimore Immigration Courts. Facing immigration and criminal court? No need to pay for two attorneys. Come to the best attorney for both of your cases. Now offering marriage-based green card filings for same sex couples! Call now! GREEN-CARD * Licensed in Maryland Graduate of Yale Law School, JD. AILA-DC 2012 FALL CONF. 331

24 Ethics Hypothetical Fact Pattern #1 Lawyer Susie is representing Natasha in an application for naturalization. Susie previously assisted Natasha in obtaining her permanent residence based on a petition filed by her US citizen husband James. Susie represented the couple throughout the entire I- 130/I-485 application process and filed G-28s for both husband and wife. Natasha showed up late to her last appointment and was visibly upset. Upon questioning by Susie, Natasha confesses that she and James got in a big fight and he became physical. Natasha told Susie that this is not the first time that this has happened and that she has thought about leaving James but does not want to negatively affect her immigration status, including her ability to naturalize immediately. She has a sick mother in her home country that she would like to sponsor. Natasha tells Susie that James is concerned that once she becomes a citizen she will no longer need him which has exacerbated problems between them. A few days after the appointment, Susie gets a call from James who tells her that they have been having problems with receiving mail at their home and Susie should send all correspondence to his work address. He also says that since the couple does not have a landline and Natasha cannot get calls at work, Susie should call him on his cell phone with any updates. Should Susie continue to represent Natasha? What should Susie advise Natasha about her living arrangements? Should Susie follow James instructions regarding communication with Natasha? AILA-DC 2012 FALL CONF. 332

25 Ethics Hypothetical Fact Pattern #2 Lawyers Dave and Bill created a new immigration firm. To keep billing simple, and to keep from having to deal with trust accounts and keeping track of their hours, which both lawyers abhorred, they offered their clients flat fees. For removal cases, the firm charged $15,000 up front. For permanent residency through employment cases, the firm required payment of $20,000 up front. The firm deposited all fees into an operating account and did not have a trust account. The lawyers divided the work on each case. Lawyers Dave and Bill soon began to argue about the division of profits and reserves and overhead. Lawyer Bill s nasty divorce case distracted him from his work, and the case quickly depleted his financial resources. He was grateful the firm employed an earned approach to all fees, and he quickly deposited funds into his personal account. To keep up with the work load without increased expense, Lawyer Dave hired a foreign consultant/advisor well versed in US immigration law. He offered to share fees earned in proportion to work brought in by the consultant. Unable to resolve their issues, Lawyers Dave and Bill hastily closed the firm, with each attorney taking one half of the cases. New clients Ann s Cosmetics, Inc., Mary and Ali had just paid for their PERM and removal cases when they each heard about the firm s trouble. They have not been able to reach either attorney for several weeks, despite leaving messages and s. They have thus grown further concerned, and want to seek counsel elsewhere. Client Mary is especially angry that neither attorney showed up to her master calendar hearing, as she had no idea what type of relief to tell the judge she was seeking. All clients want a return of funds paid. What problems might Lawyers Dave and Bill face now? What steps should Lawyers Dave and Bill have taken at the outset of the partnership, and along the way, to avoid these problems? AILA-DC 2012 FALL CONF. 333

26 U.S. Department of Justice Executive Office for Immigration Review Office of the Director 5107 Leesburg Pike, Suite 2600 Falls Church, Virginia FACT SHEET Contact: Office of Legislative and Public Affairs (in Espanol) (703) Fax: (703) Internet: March 20, 2009 EOIR s Disciplinary Program and Professional Conduct Rules for Immigration Attorneys and Representatives Questions and Answers re: Complaint Process Included In June 2000, the Executive Office for Immigration Review (EOIR) implemented a regulation, Professional Conduct for Practitioners Rules and Procedures, to protect the public, preserve the integrity of all immigration proceedings and adjudications, and maintain high professional standards among immigration practitioners. The term practitioners applies to private immigration attorneys and representatives who are authorized to represent aliens before EOIR s immigration courts and the Board of Immigration Appeals (BIA), EOIR s appellate component. It does not apply to government attorneys because they are subject to separate regulations and disciplinary procedures. The regulation was amended on December 18, 2008, (Federal Register 73 FR 76914) to enhance EOIR s Disciplinary Program for immigration attorneys and representatives. The new rules and procedures took effect on January 20, A list of the current grounds for discipline follows. EOIR s Grounds for Disciplining Attorneys and Representatives 1. Charging a grossly excessive fee; 2. Engaging in bribery or coercion; 3. Knowingly or with reckless disregard making a false statement or willfully misleading, misinforming, threatening, or deceiving any person; 4. Soliciting professional employment a practitioner is prohibited from distributing solicitation material in or around the premises of any building in which an immigration court is located; 5. Is subject to a final order of disbarment or suspension, or has resigned, while a disciplinary investigation or proceeding is pending, from practice before any state or federal court, or executive branch office or agency; (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 334

27 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 2 6. Knowingly or with reckless disregard making a false or misleading communication about qualifications or services (e.g., practitioners must be recognized as certified specialists in immigration law in order to refer to themselves as such); 7. Engaging in rude or insulting, or obnoxious conduct that would constitute contempt of court; 8. Having been convicted in any state or federal court of a serious crime; 9. Knowingly or with reckless disregard falsely certifying a copy of a document as being true and complete; 10. Engaging in frivolous behavior; 11. Engaging in conduct that constitutes ineffective assistance of counsel as found by an immigration judge, the BIA, or a federal court; 12. Repeatedly failing to appear for scheduled pre-hearing conferences or hearings in a timely manner without good cause; 13. Assisting a person other than a practitioner to practice law before EOIR; 14. Engaging in conduct that is prejudicial to the administration of justice; 15. Failing to provide competent representation to a client; 16. Failing to consult with a client concerning the objectives of the representation or abide by decisions of the client concerning how to achieve those objectives; 17. Failing to act with reasonable diligence and promptness; 18. Failing to maintain communication with a client; 19. Failing to disclose to an adjudicator, controlling legal authority known to the practitioner that is directly adverse to the position of the client if not disclosed by opposing counsel; 20. Failing to submit a signed Notice of Entry of Appearance in any case where the practitioner has engaged in practice or preparation as those terms are defined in the regulations; and 21. Repeatedly filing notices, motions, or briefs that contain boilerplate language that evidences a failure to competently and diligently represent the client. Filing a Complaint About an Immigration Attorney or Representative Any individual who believes that an immigration attorney or representative has engaged in criminal, unethical, or unprofessional conduct while practicing before EOIR may file a complaint with the EOIR Disciplinary Counsel. The complaint must be in writing and include relevant names, dates, locations, and other details sufficient to clearly identify the offending conduct or behavior. Individuals are encouraged to use a Form EOIR-44 to file a complaint. Office of Legislative and Public Affairs (more) AILA-DC 2012 FALL CONF. 335

28 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 3 Receiving and Investigating Complaints EOIR and DHS Authority EOIR s Disciplinary Counsel investigates alleged misconduct associated with practice before EOIR s immigration courts and the BIA. The EOIR Disciplinary Counsel will conduct a preliminary inquiry to determine if the complaint has merit. If the EOIR Disciplinary Counsel determines that the complaint has merit and that formal disciplinary sanctions should be imposed, the EOIR Disciplinary Counsel initiates formal disciplinary proceedings before EOIR s BIA. During the preliminary inquiry, the complaint remains confidential, with limited exceptions. All complaints concerning alleged misconduct associated with practice before the Department of Homeland Security (DHS) must be directed to DHS. (Practice before DHS relates to immigration benefit issues such as affirmative asylum, adjustment of status, and visa petitions.) DHS has similar conduct rules for attorneys and representatives (8 CFR 292.3). If DHS determines that a complaint has merit and that formal disciplinary sanctions should be imposed, DHS initiates formal disciplinary proceedings before EOIR s BIA. While EOIR and DHS receive and investigate their respective misconduct complaints separately under their respective conduct rules, both agencies initiate formal disciplinary proceedings before EOIR s BIA. Referring Complaints to Additional Authorities If a complaint about criminal conduct is found to have merit, it may also be referred to appropriate investigative or prosecutorial authorities within the Department of Justice or DHS. Complaints about unethical or unprofessional conduct may also be referred to appropriate state licensing authorities. Initiating Disciplinary Proceedings If a complaint is found to have merit, EOIR s Disciplinary Counsel or DHS may: Informally resolve the complaint through the issuance of a warning letter or informal admonition, or Enter into an agreement in lieu of discipline with a practitioner, or Initiate formal disciplinary proceedings, which can result in the suspension or expulsion of a practitioner from practicing before the immigration courts, the BIA, and DHS. Formal disciplinary proceedings begin when EOIR s Disciplinary Counsel or DHS issues a Notice of Intent to Discipline (NID) to the practitioner and files the NID with EOIR s BIA. The practitioner must respond to the NID within 30 days and, in the response, may request a hearing. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 336

29 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 4 Immediate Suspension While EOIR disciplinary proceedings are pending, the BIA may immediately suspend a practitioner who: Has been disbarred or suspended by a federal or state court, Has resigned from legal practice while a disciplinary investigation or proceeding is pending before a federal or state court, or Has been convicted of a serious crime. Failing to Respond to Allegations The BIA considers a practitioner s failure to respond to the allegations in the NID within 30 days as an admission of misconduct and a forfeiture of the right to a hearing. Consequently, when a practitioner fails to respond timely to the allegations in the NID, the BIA will issue a final order imposing the sanctions proposed in the NID. Requesting a Hearing When a practitioner requests a hearing, EOIR s Chief Immigration Judge will appoint an immigration judge as the adjudicating official who will conduct a hearing and render a decision in the case. The adjudicating official is not an immigration judge before whom the practitioner regularly appears or who is the complainant or a witness in the matter. The disciplinary hearing generally is open to the public. Disciplinary Decisions - Final Orders - Public Notification When the disciplinary proceedings are completed, EOIR issues a final order. EOIR regularly updates the public about disciplined attorneys and representatives who are no longer authorized to represent clients before the immigration courts, the BIA, and DHS by issuing news releases, available on EOIR s website at under Professional Conduct. EOIR also maintains a List of Currently Disciplined Practitioners on EOIR s website at Appealing a Disciplinary Decision The disciplined attorney or EOIR s Disciplinary Counsel may appeal an adjudicating official s decision to the BIA within 30 days. The BIA will conduct its appellate review of disciplinary decisions in the same way it reviews appeals of decisions in immigration proceedings. Disciplined attorneys or representatives may seek judicial review of a final BIA decision in their disciplinary case. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 337

30 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 5 Reinstatement Attorneys and representatives who are suspended or expelled must request reinstatement from the BIA. They must be granted reinstatement by the BIA before they can resume the practice of law before the immigration courts, the BIA, and DHS. Forms Below are the four EOIR forms that are mentioned in the professional conduct regulation. These forms are available at immigration courts and on EOIR s website at Form EOIR-28, Notice of Entry of Appearance before the Immigration Court Practitioners must file the Form EOIR-28 to enter an appearance with the immigration court. Form EOIR-27, Notice of Entry of Appearance before the BIA Practitioners must file the Form EOIR-27 to enter an appearance with the BIA. Form EOIR-45, Immigration Practitioner Appeal Form from an Adverse Decision of an Adjudicating Official in Practitioner Discipline Case Practitioners must use Form EOIR-45 to appeal to the BIA an adjudicating official s adverse decision resulting from a disciplinary proceeding. Form EOIR-44, Immigration Practitioner Complaint Form Individuals who seek to file a disciplinary complaint against an immigration practitioner who practices before EOIR may file a Form EOIR-44. However, a Form EOIR-44 is not required in order to file a complaint. Individuals may write and submit their own complaint statement or letter according to the instructions in the Questions and Answers section on the following page. Additional Information on the Complaint Process A series of questions and answers about the complaint process, for complainants as well as attorneys and representatives, follows on the next page. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 338

31 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 6 The Complaint Process: Questions and Answers for Complainants and Attorneys and Representatives How do I make a complaint against my immigration attorney or representative? If the complaint concerns the conduct of a private attorney or representative in a matter before the immigration courts, BIA, or DHS, you may submit a completed Form EOIR- 44, Immigration Practitioner Complaint Form, or you may write your own complaint statement or letter. Where can I get the Form EOIR-44 complaint form? The Form EOIR-44 complaint form is available at immigration courts and on EOIR s website at If I use the Form EOIR-44 complaint form, what additional information should I provide? Along with your completed Form EOIR-44, you may also submit supporting documents and information, such as: Correspondence between you and your attorney or representative, Documents concerning the underlying immigration case (including the case name and number), and Copies of filings in connection with the case. If I don t use the Form EOIR-44 complaint form, and instead write my own complaint statement or letter, what information should I provide? Your statement or letter must include. Your name and address, The attorney s or representative s name and address, An explanation of the circumstances and details of your complaint, and Your signature. Along with your complaint statement or letter, you may also submit supporting documents and information, such as: Correspondence between you and your attorney or representative, Documents concerning the underlying immigration case (including the case name and number), and Copies of filings in connection with the case. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 339

32 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 7 Where do I send a complaint against my immigration attorney or representative? If the complaint concerns the conduct of a private attorney or representative in a matter before EOIR s immigration courts or the BIA, send your completed Form EOIR-44 or your own complaint statement or letter with any supporting documents or information to: Executive Office for Immigration Review ATTN: Disciplinary Counsel 5107 Leesburg Pike, Suite 2600 Falls Church, VA If the complaint concerns the conduct of a private attorney or representative in a matter before DHS, send your Form EOIR-44 or your own complaint statement or letter with any supporting documents or information to: U.S. Citizenship and Immigration Services 70 Kimball Avenue, Room #103 Burlington, VT Can I call EOIR or DHS to make my complaint against my immigration attorney or representative over the telephone? No. Neither EOIR nor DHS can accept complaints over the telephone. After I file a complaint with EOIR, what will happen next? After you file a complaint with EOIR: Your complaint will be reviewed by EOIR s Disciplinary Counsel to determine whether it should be investigated further. If so, an investigation will be conducted. After the investigation, EOIR s Disciplinary Counsel determines whether there has been a violation of the professional conduct rules for practitioners. If so, EOIR s Disciplinary Counsel may either impose informal discipline (e.g., issue a warning letter or informal admonition), or initiate formal disciplinary proceedings seeking the expulsion, suspension, or censure of the immigration attorney or representative. Will EOIR inform me of the status of my complaint? Yes. EOIR will notify you when your complaint has been received and will inform you of the outcome of your complaint. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 340

33 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 8 Will I have to testify against my immigration attorney or representative? Yes, you may be called to testify if a hearing is held. Your testimony may be important in determining whether your attorney or representative violated the professional conduct rules for practitioners. Can EOIR get my money back for me and find another attorney or representative to represent me? No. EOIR cannot: Require your attorney to give you your money back, Force your attorney to act for you or tell your attorney how to proceed with your case, Give you legal advice about your case or otherwise represent you, or Recommend a particular attorney or law firm. However, EOIR provides a list of Free Legal Service Providers on its website at How do I know if an immigration attorney or representative is currently disciplined by EOIR and, therefore, is not authorized to represent clients? EOIR regularly updates the public about disciplined attorneys and representatives who are no longer authorized to represent clients before the immigration courts, the BIA, and DHS by issuing news releases, which are available on EOIR s website at under Professional Conduct. EOIR also maintains a List of Currently Disciplined Practitioners on EOIR s website at For Attorneys and Representatives: What if one of my clients files a frivolous complaint against me? Every complaint will be investigated thoroughly. If the investigation concludes that no violation of the professional conduct rules has occurred, the matter will be closed. During the preliminary inquiry, the complaint remains confidential, with limited exceptions. Am I entitled to be represented by counsel in a disciplinary proceeding? You are entitled to be represented by counsel at no expense to the government or, if you so choose, you may represent yourself. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 341

34 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 9 Where can I get the notice of appearance forms (Form EOIR-27 and Form EOIR-28), the complaint form (Form EOIR-44), and the appeal form (Form EOIR-45) for a practitioner discipline case? These forms are available at immigration courts and on EOIR s website at EOIR The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. Under delegated authority from the Attorney General, immigration judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws. EOIR s immigration judges conduct administrative court proceedings in immigration courts located throughout the nation. They determine whether foreign-born individuals who are charged by the Department of Homeland Security with violating immigration law should be ordered removed from the United States or should be granted relief from removal and be permitted to remain in this country. The Board of Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR s Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates. Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 342

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84 VIRGINIA: BEFORE THE FIFTH DISTRICT-SECTION III SUBCOMMITTEE OF THE VIRGINIA STATE BAR IN THE MATTER OF PAUL ANDREW MURPHY, ESQUIRE VSB Docket No SUBCOMMITTEE DETERMINATION PUBLIC ADMONITION, WITH TERMS On June 9,2011, a meeting in this matter was held before a duly convened Fifth District- Section ill Subcommittee consisting ofmichelle Renee Robl, Esq., Daniel H. Aminoff, lay person, and Kathleen Latham Farrell, Esq., presiding, to review an Agreed Disposition reached by the parties. Pursuant to the provisions ofthe Rules of the Supreme Court ofvirginia, Part 6, Section N, Paragraph B4.a., the Fifth District--Section III Subcommittee ofthe Virginia State Bar accepts the proposed Agreed Disposition and hereby serves upon the Respondent the following Public Admonition, with Terms, as set forth below: I. FINDINGS OF FACT 1. At all times relevant hereto, Paul Andrew Murphy ("Respondent"), has been an attorney licensed to practice law in the Commonwealth ofvirginia. 2. On or around March 24, 2008, Complainant, Tidiane Toure, retained the Respondent to assist him with an immigration matter, paying him $1, in cash on that date. Respondent advised Complainant that it would be necessary for him to return to his office with his wife so that the necessary forms could be completed. 3. On March 24,2008, the Respondent presented Complainant with a written "Agreement for legal service" which Mr. Toure signed at that time. The agreement purports to outline the Respondent's fee structure for the representation, but it was incomprehensible and impossible to understand. 4. On the following day, March 25,2008, Complainant returned to Respondent's office with his wife, Yasmin. At that time, Complainant and his wife were advised by Respondent that they would be required to pay him additional fees. When they objected to the AILA-DC 2012 FALL CONF. 392

85 additional fees, a dispute ensued, with the Complainant contending that he was entitled to a refund offees, and the Respondent maintaining that he had earned what had been paid to him. 5. The Complainant terminated the Respondent's representation. II. NATURE OF :MISCONDUCT The Subcommittee finds that the following provision of the Rules ofprofessional Conduct has been violated: RULE 1.5 (b) Fees The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate ofthe fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. III. PUBLIC ADMONITION, WITH TERMS Accordingly, it is the decision of the Subcommittee to offer the Respondent an opportunity to comply with certain Terms, compliance with which shall be a predicate for the disposition of this complaint by imposition of a PUBLIC ADMONITION, WITH TERMS. The Terms are as follows: The Respondent shall conform every written fee agreement which he uses in his practice of law to the requirements ofrules ofprofessional Conduct 1.5 and 1.15, and Legal Ethics Opinion Within thirty (30) days following the date of issuance ofthis Determination, the Respondent must submit for his approval to Seth M. Guggenheim, Senior Assistant Bar Counsel, at 707 East Main Street, Suite 1500, Richmond, Virginia , one sample copy of every such written fee agreement. Upon Respondent's compliance with the Terms set forth herein, a PUBLIC ADMONITION, WITH TERMS, shall be imposed. If, however, Respondent violates any of the Terms set forth herein, then, and in such event, the Committee shall, as an alternative disposition 2 AILA-DC 2012 FALL CONF. 393

86 to a Public Admonition, with Tenns, certify this matter to the Virginia State Bar Disciplinary Board for proceedings to be conducted pursuant to the Rules ofthe Supreme Court of Virginia, Part 6, Section IV, Paragraph ("Board Proceedings Upon Certification for Sanction Detennination"). IV. COSTS Pursuant to Part Six, Section IV, Paragraph 13-9E. ofthe Rules ofthe Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs against the Respondent. By T-SECTION III SUBCOMMITTEE VIRGINIA STATE BAR -d-du~ Kathleen Latham Farrell Chair 3 AILA-DC 2012 FALL CONF. 394

87 CERTIFICATE OF SERVICE I hereby certify that on I caused to be mailed by Certified Mail, a true and complete copy the Subcommittee Detennination (Public Admonition, with Tenns) to Paul Andrew Murphy, Esq., Suite 404, 6231 Leesburg Pike, Falls Church, VA 22044, and by first-class, regular mail, to Respondent's counsel, David Ross Rosenfeld, Esq., at 118 South Royal Street, Alexandria, VA Senior Assistant Bar Counsel 4 AILA-DC 2012 FALL CONF. 395

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93 DISTRICT OF COLUMBIA RULES OF PROFESSIONAL CONDUCT Rule 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer who receives an offer of settlement in a civil case or proffered plea bargain in a criminal case shall inform the client promptly of the substance of the communication. Rule 1.5 Fees (a) A lawyer s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;> (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; AILA-DC 2012 FALL CONF. 401

94 (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent. (b) When the lawyer has not regularly represented the client, the basis or rate of the fee, the scope of the lawyer s representation, and the expenses for which the client will be responsible shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation, other expenses to be deducted from the recovery, whether such expenses are to be deducted before or after the contingent fee is calculated, and whether the client will be liable for expenses regardless of the outcome of the matter. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: AILA-DC 2012 FALL CONF. 402

95 (1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation. (2) The client is advised, in writing, of the identity of the lawyers who will participate in the representation, of the contemplated division of responsibility, and of the effect of the association of lawyers outside the firm on the fee to be charged; (3) The client gives informed consent to the arrangement; and (4) The total fee is reasonable. (f) Any fee that is prohibited by paragraph (d) above or by law is per se unreasonable. Rule 1.7 Conflict of Interest: General Rule This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, As of February 1, 2007, the Amended Rules took effect. (a) A lawyer shall not advance two or more adverse positions in the same matter. (b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if: (1) That matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer; (2) Such representation will be or is likely to be adversely affected by representation of another client; (3) Representation of another client will be or is likely to be adversely affected by such representation; AILA-DC 2012 FALL CONF. 403

96 (4) The lawyer s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer s responsibilities to or interests in a third party or the lawyer s own financial, business, property, or personal interests. (c) A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation. (d) If a conflict not reasonably foreseeable at the outset of representation arises under paragraph (b)(1) after the representation commences, and is not waived under paragraph (c), a lawyer need not withdraw from any representation unless the conflict also arises under paragraphs (b)(2), (b)(3), or (b)(4). Rule 1.8 Conflict of Interest: Specific Rules (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless: (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) The client gives informed consent in writing thereto. AILA-DC 2012 FALL CONF. 404

97 (b) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close familial relationship. (c) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (d) While representing a client in connection with contemplated or pending litigation or administrative proceedings, a lawyer shall not advance or guarantee financial assistance to the client, except that a lawyer may pay or otherwise provide: (1) The expenses of litigation or administrative proceedings, including court costs, expenses of investigation, expenses or medical examination, costs of obtaining and presenting evidence; and (2) Other financial assistance which is reasonably necessary to permit the client to institute or maintain the litigation or administrative proceedings. (e) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client gives informed consent after consultation; (2) There is no interference with the lawyer s independence of professional judgment or with the client-lawyer relationship; and (3) Information relating to representation of a client is protected as required by Rule 1.6. AILA-DC 2012 FALL CONF. 405

98 (f) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims for or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent in a writing signed by the client after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (g) A lawyer shall not: (1) Make an agreement prospectively limiting the lawyer s liability to a client for malpractice; or (2) Settle a claim or potential claim for malpractice arising out of the lawyer s past conduct with unrepresented client or former client unless that person is advised in writing of the desirability of seeking the advice of independent legal counsel and is given a reasonable opportunity to do so in connection therewith. (h) A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon informed consent by the client after consultation regarding the relationship. (i) A lawyer may acquire and enforce a lien granted by law to secure the lawyer s fees or expenses, but a lawyer shall not impose a lien upon any part of a client s files, except upon the lawyer s own work product, and then only to the extent that the work product has not been paid for. This work product exception shall not apply when the client has become unable to pay, or when withholding the lawyer s work product would present a significant risk to the client of irreparable harm. AILA-DC 2012 FALL CONF. 406

99 (j) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (g) and (i) that applies to any one of them shall apply to all of them. Rule 1.9 Conflict of Interest: Former Client A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person s interests are materially adverse to the interests of the former client unless the former client gives informed consent. Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in the lawyer s possession in connection with a representation separate from the lawyer s own property. Funds of clients or third persons that are in the lawyer s possession (trust funds) shall be kept in one or more trust accounts maintained in accordance with paragraph (b). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) All trust funds shall be deposited with an approved depository as that term is defined in Rule XI of the Rules Governing the District of Columbia Bar. Trust funds that are nominal in amount or expected to be held for a short period of time, and as such would not be expected to earn income for a client or third-party in excess of the costs incurred to secure such income, shall be held at an approved depository and in compliance with the District of Columbia s Interest on Lawyers Trust Account (DC AILA-DC 2012 FALL CONF. 407

100 IOLTA) program. The title on each DC IOLTA account shall include the name of the lawyer or law firm that controls the account, as well as DC IOLTA Account or IOLTA Account. The title on all other trust accounts shall include the name of the lawyer or law firm that controls the account, as well as Trust Account or Escrow Account. The requirements of this paragraph (b) shall not apply when a lawyer is otherwise compliant with the contrary mandates of a tribunal; or when the lawyer is participating in, and compliant with, the trust accounting rules and the IOLTA program of the jurisdiction in which the lawyer is licensed and principally practices. (c) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property, subject to Rule 1.6. (d) When in the course of representation a lawyer is in possession of property in which interests are claimed by the lawyer and another person, or by two or more persons to each of whom the lawyer may have an obligation, the property shall be kept separate by the lawyer until there is an accounting and severance of interests in the property. If a dispute arises concerning the respective interests among persons claiming an interest in such property, the undisputed portion shall be distributed and the portion in dispute shall be AILA-DC 2012 FALL CONF. 408

101 kept separate by the lawyer until the dispute is resolved. Any funds in dispute shall be deposited in a separate account meeting the requirements of paragraph (a) and (b). (e) Advances of unearned fees and unincurred costs shall be treated as property of the client pursuant to paragraph (a) until earned or incurred unless the client gives informed consent to a different arrangement. Regardless of whether such consent is provided, Rule 1.16(d) applies to require the return to the client of any unearned portion of advanced legal fees and unincurred costs at the termination of the lawyer s services in accordance with Rule 1.16(d). (f) Nothing in this rule shall prohibit a lawyer from placing a small amount of the lawyer s funds into a trust account for the sole purpose of defraying bank charges that may be made against that account. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) The representation will result in violation of the Rules of Professional Conduct or other law; (2) The lawyer s physical or mental condition materially impairs the lawyer s ability to represent the client; or (3) The lawyer is discharged. AILA-DC 2012 FALL CONF. 409

102 (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) The client persists in a course of action involving the lawyer s services that the lawyer reasonably believes is criminal or fraudulent; (2) The client has used the lawyer s services to perpetrate a crime or fraud; (3) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (4) The representation will result in an unreasonable financial burden on the lawyer or obdurate or vexatious conduct on the part of the client has rendered the representation unreasonably difficult; (5) The lawyer believes in good faith, in a proceeding before a tribunal, that the tribunal will find the existence of other good cause for withdrawal. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) In connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any AILA-DC 2012 FALL CONF. 410

103 advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by Rule 1.8(i). Rule 7.1 Communications Concerning a Lawyer s Services (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer s services. A communication is false or misleading if it: (1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or (2) Contains an assertion about the lawyer or the lawyer s services that cannot be substantiated. (b) (1) A lawyer shall not seek by in-person contact, employment (or employment of a partner or associate) by a nonlawyer who has not sought the lawyer s advice regarding employment of a lawyer, if: (A) The solicitation involves use of a statement or claim that is false or misleading, within the meaning of paragraph (a); (B) The solicitation involves the use of coercion, duress or harassment; or (C) The potential client is apparently in a physical or mental condition which would make it unlikely that the potential client could exercise reasonable, considered judgment as to the selection of a lawyer. (2) A lawyer shall not give anything of value to a person (other than the lawyer s partner or employee) for recommending the lawyer s services through in-person contact. (c) A lawyer shall not knowingly assist an organization that furnishes or pays for legal services to others to promote the use of the lawyer s services or those of the lawyer s AILA-DC 2012 FALL CONF. 411

104 partner or associate, or any other lawyer affiliated with the lawyer or the lawyer s firm, as a private practitioner, if the promotional activity involves the use of coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct. (d) No lawyer or any person acting on behalf of a lawyer shall solicit or invite or seek to solicit any person for purposes of representing that person for a fee paid by or on behalf of a client or under the Criminal Justice Act, D.C. Code Ann (2001) et seq., in any present or future case in the District of Columbia Courthouse, on the sidewalks on the north, south, and west sides of the courthouse, or within 50 feet of the building on the east side. (e) Any lawyer or person acting on behalf of a lawyer who solicits or invites or seeks to solicit any person incarcerated at the District of Columbia Jail, the Correctional Treatment Facility or any District of Columbia juvenile detention facility for the purpose of representing that person for a fee paid by or on behalf of that person or under the Criminal Justice Act, D.C. Code Ann (2001) et seq., in any then-pending criminal case in which that person is represented, must provide timely and adequate notice to the person s then-current lawyer prior to accepting any fee from or on behalf of the incarcerated person. AILA-DC 2012 FALL CONF. 412

105 MARYLAND RULES OF PROFESSIONAL CONDUCT Rule 1.4 Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(f), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers' Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.5 Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer; (3) the fee customarily charged in the locality for similar legal services; AILA-DC 2012 FALL CONF. 413

106 (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be responsible whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination. AILA-DC 2012 FALL CONF. 414

107 (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or custody of a child or upon the amount of alimony or support or property settlement, or upon the amount of an award pursuant to Md. Code, Family Law Article, through 213; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the joint representation and the agreement is confirmed in writing; and (3) the total fee is reasonable. Rule 1.7 Conflict of Interest: General Rule (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. AILA-DC 2012 FALL CONF. 415

108 (b) Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Rule 1.8 Conflict of Interest: Current Clients: Specific Rules (a) A lawyer shall not enter into a business transaction with a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. AILA-DC 2012 FALL CONF. 416

109 (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; AILA-DC 2012 FALL CONF. 417

110 (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client or confirmed on the record before a tribunal. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) subject to Rule 1.5, contract with a client for a reasonable contingent fee in a civil case. AILA-DC 2012 FALL CONF. 418

111 (j) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them. Rule 1.9 Duties to Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) from whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or AILA-DC 2012 FALL CONF. 419

112 (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the lawyer and shall be preserved for a period of at least five years after the date the record was created. (b) A lawyer may deposit the lawyer's own funds in a client trust account only as permitted by Rule b. (c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the lawyer's own benefit only as fees are earned or expenses incurred. (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall deliver AILA-DC 2012 FALL CONF. 420

113 promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property. (e) When a lawyer in the course of representing a client is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall distribute promptly all portions of the property as to which the interests are not in dispute. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Maryland Lawyers' Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; AILA-DC 2012 FALL CONF. 421

114 (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon action or inaction that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. AILA-DC 2012 FALL CONF. 422

115 Rule 7.1 Communications Concerning a Lawyer's Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Maryland Lawyers' Rules of Professional Conduct or other law; or (c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated. Rule 7.2 Advertising (a) Subject to the requirements of Rules 7.1 and 7.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact. (b) A copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used. (c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may AILA-DC 2012 FALL CONF. 423

116 (1) pay the reasonable cost of advertising or written communication permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; (3) pay for a law practice purchased in accordance with Rule 1.17; and (4) refer clients to a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (d) Any communication made pursuant to this Rule shall include the name of at least one lawyer responsible for its content. (e) An advertisement or communication indicating that no fee will be charged in the absence of a recovery shall also disclose whether the client will be liable for any expenses. Cross References: Maryland Lawyers' Rules of Professional Conduct, Rule 1.8(e). (f) A lawyer, including a participant in an advertising group or lawyer referral service or other program involving communications concerning the lawyer's services, shall be personally responsible for compliance with the provisions of Rules 7.1, 7.2, 7.3, 7.4, and 7.5 and shall be prepared to substantiate such compliance. AILA-DC 2012 FALL CONF. 424

117 Rule 7.3 Direct Contact with Prospective Clients (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone, or real-time electronic contract even when not otherwise prohibited by paragraph (a), if: (1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing a lawyer; (2) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (3) the solicitation involves coercion, duress, or harassment. (c) Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). AILA-DC 2012 FALL CONF. 425

118 (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. AILA-DC 2012 FALL CONF. 426

119 VIRGINIA RULES OF PROFESSIONAL CONDUCT Rule 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter. Rule 1.5 Fees (a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and AILA-DC 2012 FALL CONF. 427

120 (8) whether the fee is fixed or contingent. (b) The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall state in writing the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee: (1) in a domestic relations matter, except in rare instances; or (2) for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the client is advised of and consents to the participation of all the lawyers involved; (2) the terms of the division of the fee are disclosed to the client and the client consents thereto; AILA-DC 2012 FALL CONF. 428

121 (3) the total fee is reasonable; and (4) the division of fees and the client's consent is obtained in advance of the rendering of legal services, preferably in writing. (f) Paragraph (e) does not prohibit or regulate the division of fees between attorneys who were previously associated in a law firm or between any successive attorneys in the same matter. In any such instance, the total fee must be reasonable. Rule 1.7 Conflict of Interest (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph(a), a lawyer may represent a client if each affected client consents after consultation, and: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and AILA-DC 2012 FALL CONF. 429

122 (4) the consent from the client is memorialized in writing. Rule 1.8 Conflict of Interest (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) the client consents in writing thereto. (b) A lawyer shall not use information relating to representation of a client for the advantage of the lawyer or of a third person or to the disadvantage of the client unless the client consents after consultation, except as permitted or required by Rule 1.6 or Rule 3.3. (c) A lawyer shall not solicit, for himself or a person related to the lawyer, any substantial gift from a client including a testamentary gift. A lawyer shall not accept any such gift if solicited at his request by a third party. A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer any substantial gift from a client, including a testamentary gift, unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, a person related to a lawyer includes a spouse, child, grandchild, parent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. AILA-DC 2012 FALL CONF. 430

123 (d) Prior to the conclusion of all aspects of a matter giving rise to the representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, provided the client remains ultimately liable for such costs and expenses; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after consultation; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not make an agreement prospectively limiting the lawyer s liability to a client for malpractice, except that a lawyer may make such an agreement with a client AILA-DC 2012 FALL CONF. 431

124 of which the lawyer is an employee as long as the client is independently represented in making the agreement. (i) A lawyer related to another lawyer as parent, child, sibling or spouse, or who is intimately involved with another lawyer, shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship. (j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case, unless prohibited by Rule 1.5. (k) While lawyers are associated in a firm, none of them shall knowingly enter into any transaction or perform any activity when one of them practicing alone would be prohibited from doing so by paragraphs (a), (b), (c), (d), (e), (f), (g), (h), or (j) of this Rule. Rule 1.9 Conflict of Interest (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation. AILA-DC 2012 FALL CONF. 432

125 (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless both the present and former client consent after consultation. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to or gained in the course of the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client. Rule 1.15 Safekeeping Property (a)depositing Funds. (1) All funds received or held by a lawyer or law firm on behalf of a client or a third party, or held by a lawyer as a fiduciary, other than reimbursement of advances for costs and expenses shall be deposited in one or more identifiable trust accounts or placed in a safe deposit box or other place of safekeeping as soon as practicable. AILA-DC 2012 FALL CONF. 433

126 (2) For lawyers or law firms located in Virginia, a lawyer trust account shall be maintained only at a financial institution approved by the Virginia State Bar, unless otherwise expressly directed in writing by the client for whom the funds are being held. (3) No funds belonging to the lawyer or law firm shall be deposited or maintained therein except as follows: (i) funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution or to maintain a required minimum balance to avoid the imposition of service fees, provided the funds deposited are no more than necessary to do so; or (ii) funds in which two or more persons (one of whom may be the lawyer) claim an interest shall be held in the trust account until the dispute is resolved and there is an accounting and severance of their interests. Any portion finally determined to belong to the lawyer or law firm shall be withdrawn promptly from the trust account. (b) Specific Duties. A lawyer shall: (1) promptly notify a client of the receipt of the client s funds, securities, or other properties; (2) identify and label securities and properties of a client, or those held by a lawyer as a fiduciary, promptly upon receipt; (3) maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accountings to the client regarding them; (4) promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer that such person is entitled to receive; and AILA-DC 2012 FALL CONF. 434

127 (5) not disburse funds or use property of a client or third party without their consent or convert funds or property of a client or third party, except as directed by a tribunal. (c) Record-Keeping Requirements. A lawyer shall, at a minimum, maintain the following books and records demonstrating compliance with this Rule: (1) Cash receipts and disbursements journals for each trust account, including entries for receipts, disbursements, and transfers, and also including, at a minimum: an identification of the client matter; the date of the transaction; the name of the payor or payee; and the manner in which trust funds were received, disbursed, or transferred from an account. (2) A subsidiary ledger containing a separate entry for each client, other person, or entity from whom money has been received in trust. The ledger should clearly identify: (i) the client or matter, including the date of the transaction and the payor or payee and the means or methods by which trust funds were received, disbursed or transferred; and (ii) any unexpended balance. (3) In the case of funds or property held by a lawyer as a fiduciary, the required books and records shall include an annual summary of all receipts and disbursements and changes in assets comparable in detail to an accounting that would be required of a court supervised fiduciary in the same or similar capacity; including all source documents sufficient to substantiate the annual summary. (4) All records subject to this Rule shall be preserved for at least five calendar years after termination of the representation or fiduciary responsibility. (d) AILA-DC 2012 FALL CONF. 435

128 Required Trust Accounting Procedures. In addition to the requirements set forth in Rule 1.15 (a) through (c), the following minimum trust accounting procedures are applicable to all trust accounts. (1) Insufficient Fund Reporting. All accounts are subject to the requirements governing insufficient fund check reporting as set forth in the Virginia State Bar Approved Financial Institution Agreement. (2) Deposits. All trust funds received shall be deposited intact. Mixed trust and non-trust funds shall be deposited intact into the trust fund and the non-trust portion shall be withdrawn upon the clearing of the mixed fund deposit instrument. All such deposits should include a detailed deposit slip or record that sufficiently identifies each item. (3) Reconciliations. (i) At least quarterly a reconciliation shall be made that reflects the trust account balance for each client, person or other entity. (ii) A monthly reconciliation shall be made of the cash balance that is derived from the cash receipts journal, cash disbursements journal, the trust account checkbook balance and the trust account bank statement balance. (iii) At least quarterly, a reconciliation shall be made that reconciles the cash balance from (d)(3)(ii) above and the subsidiary ledger balance from (d)(3)(i). (iv) Reconciliations must be approved by a lawyer in the law firm. (4) The purpose of all receipts and disbursements of trust funds reported in the trust journals and ledgers shall be fully explained and supported by adequate records. AILA-DC 2012 FALL CONF. 436

129 Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is illegal or unjust; (2) the client has used the lawyer's services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (6) other good cause for withdrawal exists. AILA-DC 2012 FALL CONF. 437

130 (c) In any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable Rules of Court. In any other matter, a lawyer shall continue representation notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e). (e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and, therefore, upon termination of the representation, those items shall be returned within a reasonable time to the client or the client s new counsel upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Also upon termination, the client, upon request, must also be provided within a reasonable time copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); transcripts, pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared or collected for the client in the course of the representation; research materials; and bills previously submitted to the client. Although AILA-DC 2012 FALL CONF. 438

131 the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer-client relationship. The lawyer has met his or her obligation under this paragraph by furnishing these items one time at client request upon termination; provision of multiple copies is not required. The lawyer has not met his or her obligation under this paragraph by the mere provision of copies of documents on an item-by-item basis during the course of the representation. Rule 7.1 Communications about a Lawyer's Services (a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. For example, a communication violates this Rule if it: (1) contains false or misleading information; or (2) states or implies that the outcome of a particular legal matter was not or will not be related to its facts or merits; or (3) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; or AILA-DC 2012 FALL CONF. 439

132 (4) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law. (b) Public communication means all communication other than "in-person" communication as defined by Rule 7.3. Rule 7.2 Advertising (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded, or electronic communications, including public media. In the determination of whether an advertisement violates this Rule, the advertisement shall be considered in its entirety, including any qualifying statements or disclaimers contained therein. Notwithstanding the requirements of Rule 7.1, an advertisement violates this Rule if it: (1) contains an endorsement by a celebrity or public figure who is not a client of the firm without disclosure (i) of the fact that the speaker is not a client of the lawyer or the firm, and (ii) whether the speaker is being paid for the appearance or endorsement; or (2) contains a portrayal of a client by a non-client without disclosure that the depiction is a dramatization; or (3)advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer. The disclaimer shall precede the communication of the case results. When the communication AILA-DC 2012 FALL CONF. 440

133 is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results. (b) A recording of the actual electronic media advertisement shall be approved by the lawyer prior to its broadcast and retained by the lawyer for a period of one year following the last broadcast date, along with a record of when and where it was used, which recording and date shall be provided to the Standing Committee on Legal Ethics upon its request. (c) A lawyer shall not give anything of value to a person for recommending the lawyer s services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a not-for-profit lawyer referral service or legal service organization; and (3) pay for a law practice in accordance with Rule (d) A written or communication that bears the lawyer's or firm's name and the purpose of which in whole or in part is an initial contact to promote employment for a fee, sent to a prospective non-lawyer client who is not: (1) a close friend, relative, current client, former client; or (2) one who has initiated contact with the attorney; or (3) one who is similarly situated with a current client of the attorney with respect to a specific matter being handled by the attorney, to the extent that the prospective client's rights may be reasonably expected to be materially affected by the outcome of the matter; AILA-DC 2012 FALL CONF. 441

134 shall be identified by conspicuous display of the statement in upper case letters ADVERTISING MATERIAL. The required statement shall be displayed in the lower left hand corner of the address portion of the communication in type size at least equal to the largest type used on the communication and also on the front of the first page of the communication in type size at least equal to the largest type used on the page. Further, in the case of advertising or solicitation, the header shall also display the statement, in uppercase letters, ADVERTISING MATERIAL. Further, any such written communication shall not be sent by registered mail or other forms of restricted delivery, nor shall such written communication be sent to any person who has made known to the lawyer a desire not to receive communications from the lawyer. Lawyers who advertise or solicit by shall include instructions of how the recipient of such communications may notify the sender that they wish not to receive such communications in the future. This paragraph does not apply to any communication which is directed to be sent by a court or tribunal, or otherwise required by law. (e) Advertising made pursuant to this Rule shall include the full name and office address of an attorney licensed to practice in Virginia who is responsible for its content or, in the alternative, a law firm may file with the Virginia State Bar a current written statement AILA-DC 2012 FALL CONF. 442

135 identifying the responsible attorney for the law firm s advertising and its office address, and the firm shall promptly notify the Virginia State Bar in writing of any change in status. Rule 7.3 Direct Contact with Prospective Clients and Recommendation of Professional Employment (a) A lawyer shall not, by inperson communication, solicit employment as a private practitioner for the lawyer, a partner, or associate or any other lawyer affiliated with the lawyer or the firm from a nonlawyer who has not sought advice regarding employment of a lawyer if: (1) such communication contains a false, fraudulent, misleading, or deceptive statement or claim; or (2) such communication has a substantial potential for or involves the use of coercion, duress, compulsion, intimidation, threats, unwarranted promises of benefits, over persuasion, overreaching, or vexatious or harassing conduct, taking into account the sophistication regarding legal matters, the physical, emotional or mental state of the person to whom the communication is directed and the circumstances in which the communication is made. In-person communication means face to face communication and telephonic communication. (b) A lawyer shall not assist in, cooperate with, or offer any qualified legal services plan or assist in or cooperate with any insurer providing legal services insurance as authorized AILA-DC 2012 FALL CONF. 443

136 by law to promote the use of services or those of the lawyer s partner or associate or any other lawyer affiliated with the lawyer or the firm if that assistance, cooperation or offer, and the communications of the organization, are not in accordance with the standards of this Rule or Rule 7.1 and 7.2, as appropriate. (c) A lawyer shall not assist a nonprofit organization which provides without charge legal services to others as a form of political or associational expression to promote the use of services or those of the lawyer s partner or associate or any other lawyer affiliated with the lawyer or the firm if: (1) the assistance or the communications of the organization on the lawyer s behalf are false, fraudulent, misleading, or deceptive; or (2) the assistance or the communications of the organization on the lawyer s behalf involve the use of coercion, duress, compulsion, intimidation, threats, unwarranted promises of benefits, over persuasion, overreaching, or vexatious or harassing conduct, taking into account the physical, emotional or mental state of the person to whom the communication is directed and the circumstances in which the communication is made. (d) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that the lawyer may pay for public communications permitted by Rule 7.1 and 7.2 and the usual and reasonable fees or dues charged by a lawyer referral service and any qualified legal services plan or contract of legal services insurance as authorized by law, provided that such communications of the service or plan are in accordance with the standards of this Rule or Rule 7.1 and 7.2, as appropriate. AILA-DC 2012 FALL CONF. 444

137 (e) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks the lawyer s services does so as a result of any person's conduct which is prohibited under this Rule. (f) Notwithstanding any other provisions of this Rule, a lawyer shall not initiate inperson solicitation of professional employment for compensation in a personal injury or wrongful death claim of a prospective client with whom the lawyer has no family or prior professional relationship. Inperson solicitation means facetoface communication and telephone communication. AILA-DC 2012 FALL CONF. 445

138 TRACK 1 - AFTERNOON - FAMILY BASED IMMIGRATION: DACA AND OTHER POSSIBLE REMEDIES FOR IMMIGRANT YOUTH: MATERIALS AILA-DC 2012 FALL CONF. 446

139 Secretary U.S. Department of Homeland Security Washington, DC Homeland Security June 15, 2012 MEMORANDUM FOR: David V. Aguilar Acting Commissioner, U.S. Customs and Border Protection Alejandro Mayorkas Director, U.S. Citizenship and Immigration Services John Morton Director, U.S. Immigration and Customs Enforcement FROM: Janet Napolitano {/ J-- /J ~ 1 Secretary ofhomejj/ntr8'ecurfty / SUBJECT: Exercising Proset orial Discretion with Respect to Individuals Who Came to thei.jnited States as Children By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review ofpending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities. The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum: came to the United States under the age of sixteen; has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date ofthis memorandum; is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces ofthe United States; has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and is not above the age of thirty. AILA-DC 2012 FALL CONF. 447

140 Our Nation' s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here. As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases. 1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS): With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. 2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria: ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States. ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process. ICE is directed to begin implementing this process within 60 days of the date of this memorandum. ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review. 3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check: USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the 2 AILA-DC 2012 FALL CONF. 448

141 above criteria and are at least 15 years old, for a period oftwo years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age. US CIS is directed to begin implementing this process within 60 days ofthe date ofthis memorandum. For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise ofdiscretion within the framework of the existing law. I have done so here. ~jjz~ 3 AILA-DC 2012 FALL CONF. 449

142 PRACTICE ADVISORY 1 August 20, 2012 DEFERRED ACTION FOR CHILDHOOD ARRIVALS On June 15, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano issued a memorandum to U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) explaining how prosecutorial discretion should be applied to individuals who came to the United States as children. Specifically, the memorandum directs that certain young people who do not present a risk to national security or public safety and meet specified criteria will be eligible to receive deferred action for two years, subject to renewal, and to apply for work authorization. Requests are to be decided on a case-by-case basis, and applicants must pass a background check before they can receive deferred action. The memorandum builds on prior DHS guidance regarding the exercise of prosecutorial discretion in low priority cases. 2 Since June, USCIS has issued FAQs providing more details about the eligibility criteria and application process for deferred action for childhood arrivals (DACA), as well as an application form and instructions. USCIS will receive and review DACA applications for all applicants except individuals in immigration detention, who instead are instructed to contact their deportation officer or the ICE Office of the Public Advocate. Individuals who meet the eligibility criteria may apply for DACA by submitting Form I-821D, Consideration of Deferred Action for Childhood Arrivals, accompanied by Form I-765 Application for Employment Authorization and Form I-765WS Worksheet, and requisite fees totaling $465. Note that the I- 1 Copyright (c) 2012 American Immigration Council. Click here for information on reprinting this practice advisory. This practice advisory is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client s case. The American Immigration Council s Legal Action Center, the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild co-authored this practice advisory. 2 For information on prior prosecutorial discretion guidance, see the Legal Action Center s Practice Advisories, DHS Review of Low Priority Cases for Prosecutorial Discretion (updated February 13, 2012) and Prosecutorial Discretion: How to Advocate for Your Client (June 24, 2011). AILA-DC 2012 FALL CONF. 450

143 821D will not be considered if not concurrently filed with Form I-765, the I-765WS, and required fee. The DACA policy does not supersede ICE s previously issued prosecutorial discretion guidance outlined in the June 17, 2011 Morton memo. For clients who do not meet the narrow eligibility criteria under DACA, attorneys should continue to assess the viability of deferred action requests or other requests for prosecutorial discretion based on the prior guidance. Such requests should be submitted to the local ICE Office of Chief Counsel or Field Office Director, as appropriate. What is deferred action? Deferred action is a discretionary decision by DHS not to pursue enforcement against a person for a specific period. A grant of deferred action does not alter an individual s existing immigration status or provide a path to citizenship. 3 Thus, deferred action cannot be used to establish eligibility for an immigration status that requires maintenance of lawful status. Deferred action, however, may allow a person to qualify for certain state benefits, such as drivers licenses, though state requirements vary. While deferred action does not cure any prior or subsequent period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS. An individual does not accrue unlawful presence for purposes of INA 212(a)(9)(B) and (C)(i)(I) while in deferred action status 4 or while a DACA application is pending if the individual filed a request before reaching age 18. DHS can renew or terminate a grant of deferred action at any time. What are the eligibility criteria for DACA? To establish eligibility for DACA, individuals must demonstrate that they: Were under the age of 31 on June 15, 2012, Arrived in the United States before reaching their 16th birthday, Continuously resided in the United States from June 15, 2007, to the present, Were physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from USCIS, Entered without inspection before June 15, 2012, or any lawful immigration status expired on or before June 15, 2012, 5 3 See ICE Detention and Removal Operations Policy and Procedure Manual 1.2, 20.8(a) (2006). 4 See Donald Neufeld, Acting Assoc. Dir., USCIS, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act (May 6, 2009) at 7. 5 Individuals without lawful status as of June 15, 2012, are eligible for DACA regardless of whether any applications for immigration benefits or relief from removal were pending on that date. 2 AILA-DC 2012 FALL CONF. 451

144 On the date of application, are in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the U.S. Coast Guard or the U.S. Armed Forces, 6 Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, and do not otherwise pose a threat to national security or public safety. Determinations will be made on a case-by-case basis and are within the discretion of USCIS. Is there a minimum age requirement for DACA applicants? Individuals who have never been in removal proceedings or whose proceedings were terminated before they apply for DACA must be at least 15 years old at the time of filing their applications. Individuals who are under 15 but otherwise meet the eligibility criteria for DACA can apply once they turn 15. Individuals in removal proceedings or subject to a final removal or voluntary departure order can apply for DACA even if they are under 15. Eligible individuals who are in immigration custody may not apply to USCIS for consideration, but instead are advised to identify themselves to their ICE detention officer or the Office of the ICE Public Advocate, via phone at (9 am to 5 pm, Monday-Friday) or via at [email protected]. In emergent circumstances, the individual should consider contacting the Law Enforcement Support Center hotline, at (24 hours/day, 7 days/week). What should I do if my client appears eligible for DACA but has voluntary departure? ICE has confirmed in stakeholder meetings that its attorneys are to join or submit motions to reopen and then agree to administratively close cases of individuals who appear eligible for DACA, have been granted voluntary departure, and are currently within the voluntary departure period. The filing of a motion to reopen automatically terminates the voluntary departure order. 8 C.F.R (e)(1). Attorneys who have clients in this situation should immediately contact the ICE Public Advocate hotline at (9 am to 5 pm, Monday-Friday). If an individual overstays a period of voluntary departure without having his or her case reopened, the grant of voluntary departure will automatically convert to a final order of removal and subject him or her to severe consequences. 7 DHS has not issued guidance on whether a 6 See discussion infra pp. 8-9 ( What documentation can be used to establish that an individual has fulfilled the educational requirements? and Which applicants may be eligible for DACA under the currently in school requirement and what additional information will they need to provide to request a renewal? ). 7 A person who overstays the voluntary departure period may be subject to a fine of up to $5,000 and is barred for ten years from being granted cancellation of removal, adjustment of status, change of status, registry, and voluntary departure. INA 240B(d). For more information about 3 AILA-DC 2012 FALL CONF. 452

145 grant of deferred action would be construed as a justifiable basis for not abiding by the terms of a voluntary departure grant or whether the voluntary departure period will be tolled during the period of the request for deferred action. For these reasons, attorneys should consider advising their clients to seek to withdraw a request for voluntary departure prior to the designated departure date if ICE has not joined or submitted a motion to reopen. What documentation can be used to establish an applicant s identity? According to the FAQs and Form I-821D instructions, as evidence of identity, applicants may provide passports or other national identity documents that include a photograph or fingerprint, birth certificates or school or military identification documents that include a photograph, U.S.- government immigration or other documents that include both an applicant s name and photograph, and/or other relevant documents. What documentation can be used to establish immigration status on June 15, 2012? The FAQ and Form I-821D instructions also provide a list of documents that applicants may submit to demonstrate that they were not in lawful immigration status on June 15, Acceptable documents include an Arrival/Departure Record, which indicates that an applicant s authorized stay in the U.S. has expired, final orders of exclusion, deportation, or removal issued before June 15, 2012, charging documents placing an applicant in removal proceedings, and/or other relevant documents. Applicants who entered the United States without inspection and have never been in removal proceedings need not submit evidence of their lack of immigration status. The agency guidance does not address applicants who were inspected and admitted, but nonetheless were not issued any documentation at entry (e.g., a procedurally valid entry under Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) and Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)). If they choose to apply, these applicants should consider what evidence may be produced to establish the date and manner of entry. It is important that they consistently claim an entry with inspection rather than erroneously concede entry without inspection. What documentation can be used to establish physical presence and continuous residence in the United States? Applicants for deferred action must document three aspects of their physical presence and residence in the United States, namely, that they: Entered the United States before they reached age 16, Have continuously resided in the country since June 15, 2007 (i.e., for the five year period prior to June 15, 2012), and Were physically present in the United States on June 15, the consequences of overstaying voluntary departure and how a grant of voluntary departure can be terminated, see the Legal Action Center s Practice Advisory, Voluntary Departure: Automatic Termination and the Harsh Consequences of Failing to Depart (July 6, 2009). 4 AILA-DC 2012 FALL CONF. 453

146 The USCIS guidance does not require uninterrupted physical presence for five years only continuous residence. Brief, casual, and innocent absences from the United States will not interrupt continuous residence. 8 An absence will be considered brief, casual, and innocent if it occurred prior to August 15, 2012, and it: Was short and reasonably calculated to accomplish its purpose, Was not because of an order of exclusion, deportation, or removal, Was not because of an order of voluntary departure or an administrative grant of voluntary departure prior to the initiation of exclusion, deportation, or removal proceedings, and The purpose of the absence and the applicant s actions while outside the United States were not contrary to the law. USCIS encourages applicants to submit evidence that any absences from the United States prior to August 15, 2012 were brief, casual, and innocent. This evidence may include, but not limited to: Passport entries, Transportation tickets, Hotel receipts, Evidence of the purpose of the applicant s travel, and An advance parole document, and/or Any other relevant information. The FAQs and Form I-821D instructions provide examples of the types of documents that applicants may submit to demonstrate physical presence and residence. What documentation can be used to establish that an applicant came to the United States before his or her 16th birthday? Documents that an applicant may use to establish the date he or she entered the United States include, but are not limited to: Passports with admission stamps, Arrival/Departure records (Form I-94, I-95, or I-95W), Any INS or DHS document stating date of entry to the U.S., including Form I-862 or an NTA, Records from U.S. schools applicants have attended which include the name of the school and dates of attendance, including transcripts or report cards, Travel records, including transportation tickets, 8 This provision is similar to, but not entirely limited by what is referred to as the Fleuti doctrine, under which a trip abroad does not break the continuity of residence if it was innocent, casual, and brief. See Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963). 5 AILA-DC 2012 FALL CONF. 454

147 Hospital or medical records that include the name of the medical facility or provider and the dates of treatment, Official records from a religious institution establishing an applicant was present at a religious ceremony on a particular date, and/or Other relevant documents. 9 USCIS will accept circumstantial evidence that applicants meet this guideline. What documentation can be used to establish that an applicant was physically present in the United States on June 15, 2012 and has continuously resided in the United States since June 15, 2007? Documents that an applicant may use to establish his or her physical presence in the United States on June 15, 2012 and continuous residence for the five previous years include, but are not limited to: Rent receipts, utility bills, or other receipts or letters from companies that include the dates on which an applicant received services in the United States, Records from U.S. schools applicants have attended that include the name of the school and dates of attendance, including transcripts or report cards, Employment records that include relevant dates as well as the name of the applicant and the employer or other interested party, including W-2 forms, certifications of filing federal or state income tax returns, pay stubs, signed letters from employers that include the employer s contact information and the applicant s address at the time of employment, exact periods of employment and layoffs, and duties for the employer; or, for self-employed applicants, letters from banks and firms with whom the applicant has done business, 10 Military records, including Certificates of Release or Discharge from Active Duty (Form DD-214) or National Guard Report of Separation and Record of Service (NGB Form 22), Tax receipts or insurance policies, Money order receipts for money sent into or out of the United States, Dated bank transactions, Deeds, mortgages, rental agreement contracts, or other contracts to which the applicant was a party, Automobile license receipts, titles, or registrations, 9 Unlike previous versions of the USCIS FAQ, current instructions no longer list financial, employment, or military documents as examples of acceptable evidence of an applicant s arrival in the United States prior to his or her 16th birthday. However, the list of acceptable forms of evidence provided by USCIS is not exhaustive, and given the potential verifiability of such evidence, it is not clear if this omission was deliberate or an oversight. 10 See discussion infra pg. 11 ( What are the potential immigration or criminal consequences of submitting certain documents or information as evidence with Form I-821D? ). 6 AILA-DC 2012 FALL CONF. 455

148 Official records from a religious institution establishing an applicant was present at a religious ceremony, Hospital or medical records that include the name of the medical facility or provider and the dates of treatment, Passport entries, Birth certificates for children born in the United States U.S. Social Security card, Postmarked letters and correspondence between the applicant and another person or organization establishing the applicant s U.S. address and the date of correspondence, and/or Other relevant documents. USCIS will accept circumstantial evidence that applicants were present in the United States on June 15, In addition, although applicants must provide some direct evidence that they meet the five years continuous residence requirement, they may provide circumstantial evidence to fill in gaps left by their direct evidence. Other applications which require proof of physical presence and/or residence 11 may provide insight into documenting eligibility. Attorneys may want to review the lists of documents in those programs for examples that may be suitable under the DACA initiative. See, e.g., 8 C.F.R (a)(2); (e), (f); (i), (j); and Acceptable documents also have included immigration court records, applications for immigration benefits, correspondence with immigration agencies, driver s licenses, marriage certificates, personal checks bearing a dated bank cancellation stamp, and credit card statements, among other documents. In cases where primary evidence was unavailable or would benefit from corroboration, individuals have been able to rely on testimony or affidavits attesting to physical presence, and letters from employers or attestations from churches, unions or other organizations to show continuous residence. As discussed further below, however, USCIS has stated that affidavits, on their own, generally will not be sufficient to establish eligibility for DACA. Attorneys also may find it useful to review any prior applications that their clients have filed to ensure that all the information included in a request for deferred action is consistent and/or to rediscover evidence of eligibility. Such applications may be obtained through a Freedom of Information Act request, if necessary. Some of these applications may have been supported by additional evidence of residence or entry, such as letters, affidavits or declarations from third parties. 11 Examples include: the Nicaraguan Adjustment and Central American Relief Act (NACARA), the Haitian Refugee Immigration Fairness Act (HRIFA), and Temporary Protected Status (TPS). Attorneys may also wish to review guidance found in the instructions to other applications for immigration benefits that require a showing of continuous residence or physical presence, such as EOIR-40 (Suspension of Deportation), EOIR-42A (Cancellation for Lawful Permanent Residents), EOIR-42B (Cancellation for Non-Lawful Permanent Residents), I-687 (Application for Temporary Residence under 245A), and I-881 (Special Rule Cancellation). 7 AILA-DC 2012 FALL CONF. 456

149 What documentation can be used to establish that an individual has fulfilled the educational requirements? The FAQs and Form I-821D instructions also provide a non-exclusive list of documents that can be used to prove compliance with the educational requirements, but note that circumstantial evidence will not be accepted for this purpose. 12 Individuals may demonstrate that they are enrolled in school on the date they apply for DACA, have graduated from high school, or have obtained a GED certificate by presenting: A diploma from a public or private U.S. high school or secondary school, A GED certificate or other recognized equivalent of a high school diploma under state law, including certificate of completion, certificate of attendance, or alternate award from a public or private U.S. high school or secondary school, Other documentation that the applicant has passed a GED or comparable state-authorized exam, School or educational program records, including report cards transcripts, progress reports, acceptance letters, school registration cards, and/or letters from the school or program, that include the name of the U.S. school or educational program an applicant is currently attending, the applicant s current educational or grade level, and the applicant s dates of attendance, and/or Other relevant records. Which applicants may be eligible for DACA under the currently in school requirement? According to the USCIS FAQ, applicants who are enrolled in the following types of programs may be considered currently in school for the purposes of DACA: Public or private elementary school, junior high or high school, Education, literacy, vocational, or career training programs, including but not limited to those funded wholly or partially by federal or state grants, 13 that seek to place applicants in postsecondary education, job training, or employment, if applicants are working towards such post-program placement, 12 See discussion infra pp ( Will USCIS accept affidavits to fulfill the eligibility criteria for DACA? and Will USCIS consider circumstantial evidence to establish eligibility for DACA? ). 13 According to the FAQs, enrollment in programs not partially or wholly funded by federal or state grants may meet the educational requirements of DACA, where such programs are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges, and certain community-based organizations. Applicants will have the burden of proving such programs demonstrated effectiveness; USCIS will consider factors including the programs duration, effectiveness, and overall quality. 8 AILA-DC 2012 FALL CONF. 457

150 English as a Second Language (ESL) program, only if applicants are participating in the program as a prerequisite to enrollment in postsecondary education, job training, or employment and applicants are working towards such post-program placement, 14 or Educational programs that assist students in obtaining a high school diploma or its equivalent under state law, or in passing a GED or other state-authorized exam, if the program is funded in whole or in part by federal or state grants or is of demonstrated effectiveness. What additional information will applicants need to request a renewal of DACA? Those applicants seeking to fulfill the currently in school educational requirement may need to provide additional information to renew their deferred action status two years after their initial application. Although details will be forthcoming, according to the FAQ, applicants enrolled in schools or programs would need to demonstrate the following to renew deferral after two years: Applicants enrolled in high school or secondary school must show either that they have graduated from the school in which they were enrolled at the time of their original application or made substantial, measurable progress towards graduation, Applicants enrolled in elementary or middle school must demonstrate they have graduated from the school in which they were enrolled at the time of their original application and made substantial, measurable progress towards graduation from high school, or have made substantial, measurable progress towards graduation from the school in which they were enrolled at the time of their original application, Applicants enrolled in educational programs assisting students in obtaining a high school diploma or GED must show that they have received a high school diploma or its equivalent, passed the GED exam or equivalent state-authorized exam, and Applicants enrolled in educational, literacy, vocational, or career training programs must demonstrate that that they are enrolled in postsecondary education, have obtained employment for which they were trained, or have made substantial, measurable progress toward completing the program. What documentation can be used to establish that an individual has fulfilled the military service requirements? USCIS states that circumstantial evidence will not be accepted to demonstrate that an applicant meets the military service requirements. The FAQs and Form I-821D instructions provide a nonexclusive list of documents that can be used to prove that applicants have been honorably discharged from the U.S. Coast Guard or U.S. Armed Forces. These include, but are not limited to Form DD-214, Certificate of Release or Discharge from Active Duty, NGB Form 22, National Guard Report of Separation and Record of Service, military personnel records, and military health records. 14 According to the FAQ, applicants seeking to fulfill the currently in school educational requirement with an ESL program must submit documentary, not circumstantial, evidence that their enrollment is connected to... placement in postsecondary education, job training or employment and of the program s demonstrated effectiveness. 9 AILA-DC 2012 FALL CONF. 458

151 Initial consideration of the military service provisions suggests that they will benefit a very small number of people, as noncitizens who entered the United States without inspection or who are not in a lawful immigration status generally may not enlist in the U.S. Armed Forces or Coast Guard. Under the military service provisions, 10 U.S.C. 504(b)(1), only U.S. citizens and nationals, lawful permanent residents, certain persons from Palau, Micronesia, and the Republic of the Marshall Islands, and certain other persons whose enlistment has been determined by a Service Secretary to be vital to the national interest may enlist. Among the limited number of individuals who are honorably discharged veterans under age 31, and otherwise eligible for deferred action, most also would be eligible for naturalization under INA 329, and therefore not in need of deferred action. Importantly, the June 15, 2012 memorandum did not alter the enlistment rules for individuals who receive deferred action. To date, no Service Secretary has exercised his or her statutory authority to enlist undocumented noncitizens or individuals who have been granted deferred action. See 10 U.S.C. 504(b)(2) (providing that the Secretary may authorize the enlistment of individuals not typically permitted to enlist). Attorneys should ensure that their clients are aware that the new policy does not expand the categories of noncitizens eligible for enlistment, and that their clients will not be eligible to enlist, even if they are successful in seeking deferred action. Will USCIS accept affidavits to fulfill the eligibility criteria for DACA? Affidavits cannot be used to prove the educational or military service requirements, physical presence on June 15, 2012, arrival in the U.S. prior to age 16, the under-31 age requirement, or criminal history. Failure to submit required primary evidence to establish these eligibility criteria will result in the issuance of a request for evidence (RFE). Affidavits may be used to fill a gap in other documentation demonstrating that an applicant meets the five-year continuous residence requirement and/or that any departures during the five years were brief, casual, and innocent. To fulfill these criteria, applicants must submit two or more affidavits from other individuals who have direct personal knowledge of relevant events and circumstances. Will USCIS consider circumstantial evidence to establish eligibility for DACA? In the absence of other documentation, circumstantial evidence may be used to prove physical presence on June 15, 2012 and/or arrival in the U.S. prior to age 16, to fill gaps in direct evidence of the required five-year continuous residence period, and/or to show that any departures during the period of continuous residence were brief, casual, and innocent. This suggests that DHS will likely apply a presumption of presence for individuals who can show presence on days near June 15, 2012, but not necessarily on that day. This is similar to the approach employed for adjustment applications under INA 245(i), in which an applicant must demonstrate presence on December 21, In those cases, the agency typically considers evidence of presence both before and after the qualifying date to be sufficient to meet the applicant s burden. 10 AILA-DC 2012 FALL CONF. 459

152 Circumstantial evidence may not be used to prove an individual s age on June 15, 2012, or to document the educational or military service requirements. What are the potential immigration or criminal consequences of submitting certain documents or information as evidence with Form I-821D? Confidentiality provisions outlined in the FAQs indicate that information provided to USCIS in the DACA process is protected from disclosure to ICE or CBP for the purpose of immigration enforcement unless the requestor meets the criteria for the issuance of a Notice to Appear. Information may be shared, however, with other law enforcement agencies, including ICE and CBP, for purposes other than removal or where the applicant meets the criteria for issuance of a Notice to Appear. These other purposes include the identification or prevention of fraudulent claims, national security or the investigation or prosecution of a criminal offense. Attorneys should carefully examine all documents before submitting them to USCIS in support of a DACA application to assess whether they might contain information that could adversely affect the applicant. These documents may include records related to employment, financial, and tax matters. How can I determine whether my client has been convicted of any disqualifying crimes? Attorneys should question their clients in detail about their criminal histories and take steps to obtain copies of all police reports and records of disposition of any criminal charges, including any juvenile adjudications, no matter how minor or how long ago they occurred. A relatively simple way to obtain an individual s adult arrest record is through an FBI criminal background check, which requires the submission of an application form, fingerprints, and an $18 fee. 15 In addition, many states have web-based systems that enable individuals and their attorneys to access criminal records. 16 Some states require that the individual provide fingerprints in person in order to obtain records. Because individuals with pending warrants could be arrested if they go to a law enforcement office to provide fingerprints, attorneys should explore alternative ways of obtaining criminal histories, such as private fingerprinting services or web-based records requests. State laws govern access to juvenile records. Most states consider those records to be public, but restrict access after the person attains the age of majority. Attorneys should seek records relating to juvenile delinquency, including diversion or referrals to restorative justice programs, for all clients interested in applying for DACA. 15 More information about FBI criminal background checks is available at 16 Information about state-based criminal history systems can be found at: 11 AILA-DC 2012 FALL CONF. 460

153 Because USCIS will conduct independent background checks following collection of biometrics, applicants are not required to submit evidence of good moral character. However, if your client has a criminal record or other adverse factors affecting his case, such evidence may be helpful. What crimes render an applicant ineligible for deferred action? Individuals are not eligible for deferred action if they have been convicted of a felony, a significant misdemeanor, 17 or three or more non-significant misdemeanors (not including minor traffic offenses) unless DHS determines that there are exceptional circumstances. DHS has not provided any guidance as to what could constitute an exceptional circumstance. The FAQs specifically exclude immigration-related offenses classified as felonies and misdemeanors under state laws (such as Arizona s SB 1070). Presumably, criminal violations of federal immigration law will be considered. The federal criminal classification scheme governs whether an offense is considered a felony or misdemeanor for purposes of DACA. A felony is an offense punishable by a potential sentence of more than one year. A misdemeanor is an offense punishable by more than five days, but less than a year. The label a state attaches to a particular offense is not relevant. Thus, some offenses that a state labels as a misdemeanor, but which include a potential sentence of more than one year, will be a felony. A violation which carries a sentence of five days or less, such as a municipal violation, may not be counted as a misdemeanor, but may nonetheless be taken into consideration under the totality of the circumstances. Attorneys should also be cautious of federal tickets, which under the Assimilated Crimes Act, could be counted as a misdemeanor. A significant misdemeanor includes any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence; and drug distribution or trafficking. A significant misdemeanor may also include any other misdemeanor for which an applicant was sentenced to more than 90 days imprisonment, not including suspended sentences, pretrial detention or time held pursuant to an immigration detainer. The policy specifically notes that a conviction for driving under the influence of drugs or alcohol is a significant misdemeanor, regardless of the sentence imposed. The FAQs separately define a non-significant misdemeanor. The term includes any misdemeanor punishable by imprisonment of more than five days and less than a year that is not identified as a per se significant misdemeanor (see above), for which a person receives a sentence of 90 days or less, again, not including suspended sentences, pretrial detention or time held pursuant to an immigration detainer. Individuals with three or more non-significant misdemeanors not occurring on the same date and not arising out of the same act, omission or scheme of misconduct are ineligible for deferred action. Minor traffic offenses, including driving without a license, will not count towards the 17 This term does not appear in the Immigration and Nationality Act or elsewhere in the U.S. Code. 12 AILA-DC 2012 FALL CONF. 461

154 three or more non-significant misdemeanor bar. However, DHS has stated that a person s entire history of offenses can be considered, along with other facts, to determine whether deferred action is warranted under the totality of the circumstances. Further, Form I-821D asks whether an applicant has ever been arrested for, charged with, or convicted of a crime in any country other than the United States. Unlike the question on the I- 821D regarding convictions in the United States, the question on foreign crimes neither mentions the words felony or misdemeanor nor the exception for minor traffic violations. Although the Board of Immigration Appeals has case law regarding how to classify a foreign crime, DHS does not indicate how it intends to treat these offenses for DACA purposes. 18 A question remains whether DHS will use the maximum punishment under the foreign law to determine whether the offense is a felony or a misdemeanor for DACA purposes. An applicant for DACA who does not meet the eligibility requirements risks being placed in removal proceedings or being detained. In addition, for cases that involve a criminal offense, fraud, or a threat to national security or public safety, confidentiality protections, which are discussed below, will likely not apply unless DHS determines there are exceptional circumstances. USCIS will apply its existing Notice to Appear guidance governing referral of cases to ICE and issuance of notices to appear, which is also discussed below. What additional documents must applicants who have been arrested submit? Form I-821D requires an applicant who answers yes to Part III, question 1, regarding arrests in the United States to furnish copies of all arrest records, charging documents, dispositions (outcomes), sentencing records, etc. An applicant with a foreign conviction must furnish the same level of documentation. How will DHS treat juvenile delinquency adjudications? DHS uses the term juvenile conviction to refer to a juvenile delinquency adjudication. DHS states that a juvenile delinquency adjudication will not automatically disqualify an applicant from DACA relief. A minor with a delinquency adjudication will get a case-by-case review to see if the particular circumstances of his or her case warrant a positive exercise of prosecutorial discretion. Attorneys should explore the circumstances and facts surrounding any juvenile delinquency adjudication to anticipate how DHS might characterize the underlying conduct that gave rise to the delinquency adjudication, as well as seek out evidence of mitigation or rehabilitation, as appropriate. For example, a noncitizen who receives a delinquency adjudication because of an offense which otherwise would have been considered a significant misdemeanor for an adult, may be found ineligible. A noncitizen convicted as an adult offender has an adult conviction, and does not receive case-by-case treatment based on age. 18 See, e.g., Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981) (requiring offense to be for conduct deemed criminal in the United States and evaluating crime in light of United States standards for purposes of determining whether offense was criminal or delinquent). 13 AILA-DC 2012 FALL CONF. 462

155 Will expunged convictions be considered under the new policy? The same policy relating to juvenile convictions applies to expunged convictions. Applicants with expunged convictions will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. This is a departure from immigration law precedent, which treats expunged convictions as convictions for immigration purposes. What other conduct-based activities are bars to deferred action? Even absent a criminal conviction, individuals are ineligible for deferred action if their background checks or other information reveal that they pose a threat to public safety or national security. Relevant factors include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States. 19 Under a totality of circumstances test, DHS may consider allegations of participation in criminal activities based on the facts surrounding dismissed charges, as well as participation in drug/alcohol programs, or anger management classes. Attorneys should review the circumstances of any dismissed charges to see if the applicant could nonetheless be found ineligible for deferred action or even at risk of enforcement action. Police reports or complaints suggesting drug use or drug trafficking, assaults against family members or partners, and sex crimes should be explored in detail to see if the conduct could be construed as participation in criminal activities. Suspected gang membership also presents a bar to DACA. Unfortunately, many people will not know if they are suspected of being gang members until USCIS completes a background check. USCIS may rely on reports from local police departments to determine gang membership, and has not indicated whether individuals will be advised if this is the reason for a failed application, much less whether an applicant will be notified of the issue and provided an opportunity to rebut allegations of gang membership. Attorneys should carefully review criminal history information for any gang references. In addition, the attorney can submit a FOIA request to ICE or a public records act request to the local police department to see if a client is believed to be a current or former gang member. Attorneys are advised to review distinctions between gang members and nonmembers. For example, a gang membership determination could be incorrect if a USCIS officer misreads tattoos and incorrectly concludes that the person in question belongs to a specific gang. Alternatively, an individual may have been a gang member in his teenage years, but subsequently left the gang. An applicant with mitigating factors and other significant equities might still be favorably considered. However, as discussed above, such an individual risks potential removal if he or she is considered an enforcement priority. Practitioners are advised to follow trends in this area closely. This same analysis would apply when reviewing whether someone could be construed to be a national security threat. 19 Gang membership may prove to be an area of concern for potential applicants, given the reported difficulties former gang members face obtaining other immigration benefits or forms of prosecutorial discretion. 14 AILA-DC 2012 FALL CONF. 463

156 What constitutes an exceptional circumstance to overcome a bar to DACA? DHS has not provided any guidance as to what could constitute an exceptional circumstance, but practitioners should assume that DHS will apply this exception sparingly. A possible example of a case that might qualify would be a domestic violence conviction where the person convicted was not the primary perpetrator of violence in the relationship. 20 It is unclear whether evidence of rehabilitation or significant time since the activity at issue will overcome the bar. Because individuals who would face these bars are necessarily likely to be considered enforcement priorities, attorneys should proceed with caution, if at all, in affirmative filings, and should consider providing clients with clear written warnings of the risks associated with making a request. Are individuals who are currently in removal proceedings or subject to a final removal order or a voluntary departure order eligible for DACA? Yes. According to the FAQs, individuals who fall into these categories, meet the eligibility guidelines, and are not currently in immigration detention should submit their applications to USCIS not ICE as stated in the initial FAQs released on June 15, The request should include a copy of the removal order or the decision of the immigration court or the Board of Immigration Appeals, if available. Such individuals may be under 15 at the time of the request, but cannot have been 31 or older as of June 15, 2012, to be considered for DACA. If an individual does not meet the age requirements for DACA, he or she may ask ICE to consider a request for prosecutorial discretion under the June 17, 2011 Morton memo. If a client in immigration detention meets the eligibility criteria for DACA, you should notify his or her detention officer or contact the ICE Office of the Public Advocate at (9 a.m. to 5 p.m., Monday to Friday) or by at [email protected]. Once ICE is made aware of the case, it is unclear whether the application will be adjudicated by ICE or USCIS, or what the process will be. If your client is in danger of imminent removal, you should immediately contact the Law Enforcement Support Center hotline at (24 hours/day, 7 days/week). Individuals who recently received a final order of removal and are still within the statutory time period for seeking reopening (within 90 days of the entry of a final order of removal under INA 240(c)(7)(C)), may want to consider filing a motion to reopen based on the new DACA guidance. Alternatively, an individual beyond the reopening period may seek DHS s consent to file a joint motion to reopen or even present a motion to the immigration court or Board of Immigration Appeals (BIA) for sua sponte consideration. Even though such individuals are eligible for DACA, it is to their advantage in most cases to reopen the case in order to obtain administrative closure or termination. This may put them in a better position in the event DACA is rescinded, a renewal application is denied, or the individual becomes eligible for another form of relief from removal. 20 INA 237(a)(7). 15 AILA-DC 2012 FALL CONF. 464

157 Can individuals apply for DACA if they were previously offered, but did not accept an offer of administrative closure, or if a request for prosecutorial discretion was declined? Yes. Any individuals who can demonstrate that they meet the guidelines are eligible for DACA, even if their cases were considered in the course of DHS s case-by-case review process and regardless of the results. Since Secretary Napolitano s June 15th announcement, ICE has granted deferred action to certain individuals who met the DACA guidelines whose cases were already identified for administrative closure. Will deferred action applicants accrue unlawful presence while their applications are pending? Applicants who are 18 years old or older will continue to accrue unlawful presence while their applications for DACA are pending. Individuals under 18 years old do not accrue unlawful presence. See INA 212(a)(9)(B)(iii)(I). Based on the FAQs, applicants who request deferred action while under age 18 will not accrue unlawful presence even if they turn 18 while their requests are pending. An individual granted deferred action will not accrue unlawful presence during the period of deferred action, but previous or subsequent periods of unlawful presence are not erased by a grant. Thus, individuals who have accrued at least 180 days or one year of unlawful presence before receiving deferred action may already be subject to the three and ten-year bars, respectively, and should avoid leaving the country under any circumstances. The FAQs state that a person granted deferred action is eligible to apply for advance parole, and may be able to depart and reenter the country as a parolee. Note, however, that under the recent BIA decision in Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012), an individual who otherwise would trigger the three- or ten-year bar simply because he or she departed under advance parole, is not considered to have departed the United States. Presumably, individuals who already have a path to residency, but who are not currently eligible to adjust, may find themselves adjustable after travel on advance parole. What will happen to individuals who meet the eligibility criteria but are stopped or arrested by ICE or CBP? On June 15, 2012, Secretary Napolitano instructed ICE and CBP to immediately exercise their discretion, on a case-by-case basis, to prevent individuals who meet the eligibility criteria from being apprehended, held under ICE detainers, placed into removal proceedings, or removed from the United States. On a June 18 national stakeholder call, CBP announced that individuals who encounter CBP will be briefly detained for screening purposes. Following an interview and a background check, CBP will release individuals who are found to be prima facie eligible for deferred action. CBP will instruct eligible individuals to apply to USCIS for deferred action. If you believe that ICE or CBP has pursued enforcement action against your client in violation of this policy, you should contact the Law Enforcement Support Center s hotline at (24 hours/day, 7 days/week) or the ICE Office of the Public Advocate at (9 am 16 AILA-DC 2012 FALL CONF. 465

158 to 5 pm, Monday-Friday) or by at [email protected]. Also, please complete this survey to assist AILA and the Legal Action Center in monitoring implementation of the new policy. Can individuals in removal proceedings who are granted deferred action influence whether their cases should be terminated, administratively closed or pursued? Once an NTA has been filed with the immigration court, only the immigration judge can decide whether to terminate or administratively close proceedings. Joint motions for such relief are invariably granted. In Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), however, the Board held that an immigration judge could grant a motion to administratively close proceedings filed by either party over the objection of the other party. Thus, a respondent can seek this relief even if ICE counsel does not agree. Conversely, because a party s opposition to administrative closure is a factor that an immigration judge must consider under Matter of Avetisyan, a respondent also can object to an ICE motion for administrative closure. Attorneys should bear in mind that there may be strategic advantages to termination or administrative closure, or even continuing on to the merits, depending on a particular respondent s situation. Attorneys should thoroughly weigh options before choosing a particular course of action. Notably, there is no legal authority requiring that a case be administratively closed or terminated before DHS grants deferred action. DHS has not addressed whether it will require respondents to join a motion to terminate or administratively close the removal case as a condition of a DHS grant of deferred action. Assuming an individual can decline an ICE offer to join a motion for termination or administrative closure without losing eligibility for DACA, it remains to be seen whether the offer then expires or can be accepted at a later time (e.g., after an adverse determination on the merits by an immigration judge). During ICE s review of pending cases for prosecutorial discretion, individuals in removal proceedings have frequently faced a take it or leave it dilemma, where administrative closure is not offered a second time if initially declined. However, if DHS determines that an individual meets the eligibility criteria for deferred action, this determination should not be affected if the individual opts to pursue other forms of relief first. Further, given that deferred action is available to those with final orders of removal, it is reasonable to expect that offers would be renewed at the end of removal proceedings if a more favorable outcome were not achieved. Will individuals who receive deferred action be eligible to work? Yes. Under 8 C.F.R. 274(a).12(c)(14), individuals who receive deferred action may apply for and obtain employment authorization for the period of deferred action if they can establish an economic necessity for employment. 21 An application for employment authorization should be 21 Economic necessity, which also governs requests for employment authorization by U visa holders, does not require a showing of economic hardship. 17 AILA-DC 2012 FALL CONF. 466

159 filed concurrently with an application for DACA. 22 An individual who applies for and receives a renewal of deferred action separately must request a renewal of his or her employment authorization. At this point, there is little guidance on what evidence is necessary to establish economic necessity, but it is important to distinguish between economic necessity and economic hardship. In practice, any individual demonstrating a need to lawfully be able to accept employment should be eligible for work authorization. What is the application process for DACA? On or after August 15, 2012, applicants other than those in detention should send a completed and signed Form I-851D (Consideration of Deferred Action for Childhood Arrivals) and supporting documentation, along with Form I-765 (Application for Employment Authorization), Form I-765WS (Form I-765 Worksheet), and the requisite fees totaling $465, 23 to the USCIS lockbox designated for their state of residence. 24 Applicants must submit an Application for Employment Authorization and associated fee in order to apply for DACA. Once USCIS determines that an application is complete, the applicant will be sent a receipt notice, followed by an appointment notice requiring the applicant to attend a biometrics appointment at an Application Support Center. Applicants who wish to receive notices via or text message may submit a Form G-1145 (E-Notification of Application/Petition Acceptance). All applicants must submit to biometric and biographic background checks prior to receiving deferred action. USCIS will notify applicants in writing if more information or evidence is needed, or if an in-person appearance will be required. Applicants will be able to track the status of their applications online and will receive a final written decision from USCIS. Are fee waivers available under DACA? There are no fee waivers associated with DACA, but in accordance with 8 C.F.R (d) limited fee exemptions are available. To request a fee exemption, attorneys should send USCIS a letter and supporting documentation establishing that their clients: Are under 18, homeless, in foster care or lacking parental or familial support for other reasons, and have an income under 150% of the U.S. poverty level, Cannot care for themselves because they suffer from a serious, chronic disability and have an income under 150% of the U.S. poverty level, or At the time of the request, have accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for themselves or an immediate family member, and their income is less than 150% of the poverty level. Requests for such exemptions must be filed and granted before an individual files a DACA application without the requisite fee. 22 The required forms are available on the USCIS website at and 23 This includes $380 for employment authorization and $85 for biometrics. 24 The mailing addresses and instructions are available at 18 AILA-DC 2012 FALL CONF. 467

160 Acceptable evidence will include: Affidavits from community-based or religious organizations to establish homelessness or lack of parental or familial support, Copies of tax returns, bank statements, pay stubs, or other reliable evidence of income; Affidavits from the applicant or responsible third parties attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income, Copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses. USCIS will issue requests for evidence (RFEs) if more information is needed. Will individuals who apply for DACA be permitted to travel outside the United States? Individuals who travel outside the United States after August 15, 2012 either before they apply for DACA or while their applications are pending will be deemed not to have fulfilled the continuous residence requirement. Any departure after that date, but before a grant of deferred action (regardless of being brief, innocent and casual) will disqualify an applicant for DACA. Thus, all clients should be warned of the consequences of travel prior to a grant of deferred action. Individuals who have been granted deferred action may be permitted to travel abroad, but only pursuant to a grant of advance parole from USCIS. After receiving deferred action, individuals seeking to travel outside the United States must apply for advance parole by filing Form I-131, Application for Travel Document and paying the $360 filing fee. USCIS generally will grant advance parole to a DACA recipient only if the purpose of the intended travel is humanitarian, educational or employment-related. The advance parole must have been granted prior to any departure. Those individuals who receive deferred action but are subject to a final order of removal may request advanced parole, but should not travel outside of the country unless they have reopened their removal cases and the case has been terminated, or the case has been administratively closed and is before the immigration court. 25 Even if travel abroad is permitted via advance parole, it may not be in your client s best interest. Although unlawful presence will not accrue during any deferred action period, individuals who have reached the age of eighteen may be subject to the inadmissibility bars if they have previously been unlawfully present in the United States for more than 180 days. The Board s recent decision in Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012), however, hints at a possible advantage to travel on advance parole. Arrabally held that a departure under advance parole after more than 180 days of unlawful presence does not trigger the three- and tenyear bars. 25 It is important to note that if the applicant s case is before the BIA and the case is administratively closed, departure will automatically withdraw the appeal. 8 C.F.R AILA-DC 2012 FALL CONF. 468

161 If a person has already triggered inadmissibility under 212(a)(9)(B) or (C), travel under advance parole will not cure the previously incurred bar. Under Arrabally, an argument could be made that individuals who already have a path to residency, but who are not currently eligible to adjust (such as an EWI immediate relative of a U.S. citizen, entering as a parolee), may find they are not only eligible to apply to adjust after travel on advance parole (because they now are in parole rather than EWI status), but also need not apply for a waiver of the three- or ten-year bar. Given the short time Arrabally has been in play and the lack of guidance on how USCIS may treat such departures, attorneys should monitor developments in this area before advising clients on the impact of travel. Under no circumstances should an individual granted deferred action travel abroad without a grant of advance parole. Such an individual will be subject to any applicable grounds of inadmissibility upon returning to the United States. Will family members of individuals who receive deferred action under this policy also be granted deferred action? Only individuals who meet all the eligibility criteria will be granted deferred action under the new memorandum. Family members, including dependents who do not independently qualify, will not receive deferred action pursuant to this process. Although such family members may still be eligible for prosecutorial discretion pursuant to prior guidance issued by USCIS or ICE or the ongoing review of pending removal cases announced in August 2011, there is no affirmative application process for such relief. Thus, if family members are not currently in removal proceedings, not likely to be placed into proceedings, and not under an imminent threat of deportation, they will not be able to apply for prosecutorial discretion under the prior guidance. There is no indication that family members of individuals who receive deferred action will have a heightened risk of immigration enforcement. To the contrary, confidentiality provisions outlined in the FAQs indicate that these individuals are not at any increased risk, and the fact that a family member has been granted deferred action may be a positive discretionary factor in evaluating enforcement priorities. Can a grant of deferred action be extended beyond two years? Yes. Unless a grant of deferred action is terminated prematurely, a recipient may request a renewal of both deferred action and employment authorization. Like the original applications, these requests will be considered on a case-by-case basis. What will happen to individuals whose requests for deferred action are denied? Attorneys are advised to warn their clients in writing that even for prima facie eligible cases, deferred action is not guaranteed. The warning should further explain that applicants will be revealing and, in most cases, documenting their removability to a government agency that can 20 AILA-DC 2012 FALL CONF. 469

162 initiate removal proceedings. 26 If USCIS denies deferred action to an applicant subject to a final order of removal, that individual may still request prosecutorial discretion pursuant to the prior guidance issued by ICE on June 17, 2011, or the ongoing review of pending removal cases announced in August Such requests may be submitted to the local ICE Office of Chief Counsel or Field Office Director, as appropriate. In cases where USCIS denies an individual s request for deferred action and the individual is not subject to a final order of removal, USCIS will apply its existing Notice to Appear guidance governing referral of cases to ICE and issuance of notices to appear. This guidance prioritizes the prosecution of cases involving criminal convictions, fraud, and threats to national security or public safety. 27 In addition, DHS said in the FAQs that individuals who knowingly make a misrepresentation or knowingly fail to disclose facts in the deferred action application process will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States. Other cases will be referred to ICE for removal proceedings only where DHS determines that there are exceptional circumstances, a term which is not defined. However, USCIS has indicated that, even where an applicant for deferred action is referred to ICE for immigration purposes, information regarding that individual s family members or guardians will not be given to ICE for the purpose of seeking the removal of the family member or guardian. USCIS may share information regarding applicants, as well as their family members and guardians, with national security and law enforcement agencies, including ICE and CBP, for purposes unrelated to immigration enforcement, including for assistance in consideration of DACA applications, to identify or prevent fraudulent claims, for national security purposes, or to investigate or prosecute a criminal offense. Can individuals appeal a denial of deferred action under the new memorandum? No. However, applicants or their attorneys can contact the National Customer Service Center at to request review if: (i) USCIS denied the DACA application based on abandonment in a case where the applicant responded to a Request for Evidence within the prescribed time; or (ii) USCIS mailed the Request for Evidence to the wrong address despite the applicant s prior submission of a Form AR-11 (Change of Address) or online change of address. If you believe that your client s DACA application was improperly denied, please be sure to 26 Confidentiality provisions outlined in the most recent FAQs indicate that such information, regarding applicants or their family members or guardians, is protected from disclosure for the purpose of immigration enforcement unless the requestor meets the criteria for the issuance of a Notice to Appear. Notably, the policy is subject to change. 27 In accordance with its existing guidance, USCIS also will continue to issue Notices to Appear as required by statute or regulation, including in cases involving denials of Form I-751 (Petition to Remove the Conditions of Residence), denials of Form I-829 (Petition by Entrepreneur to Remove Conditions), terminations of refugee status, denials of NACARA 202 and HRIFA adjustments, asylum referrals, termination of asylum or withholding of removal, positive credible fear findings, and certain NACARA 203 cases. 21 AILA-DC 2012 FALL CONF. 470

163 complete AILA s survey in order to help AILA and the LAC monitor implementation and advocate for improved policies and procedures. There is no prejudice to filing a new application. 22 AILA-DC 2012 FALL CONF. 471

164 SCREENING DACA APPLICANTS FOR ADDITIONAL IMMIGRATION REMEDIES Paula Fitzgerald Virginia Managing Attorney AILA-DC 2012 FALL CONF. 472

165 Potential Immigration Remedies for DACA applicants Special Immigrant Juvenile Status (SIJS) U Visa T Visa Violence Against Women Act (VAWA) Self Petition Derivation/Acquisition of Citizenship Asylum Family Petition Prosecutorial Discretion AILA-DC 2012 FALL CONF. 473

166 SPECIAL IMMIGRANT JUVENILE STATUS AILA-DC 2012 FALL CONF. 474

167 SIJS - Elements The child must be unmarried and under 21 The Court must have jurisdiction under state law to make determinations about the care & custody of children The child must be dependent on the Juvenile Court or placed under the custody of an individual or entity appointed by a State or Juvenile Court Reunification w/ 1 or both parents is not viable b/c of abuse, abandonment, or neglect It must not be in the child s best interests to return to his/her country AILA-DC 2012 FALL CONF. 475

168 SIJS - Benefits Can apply for adjustment of status after I-360 is approved by USCIS Certain grounds of inadmissibility are waived (i.e. public charge, unlawful entry, fraud, misrepresentation, unlawful presence) ICE will join motions to reopen after I-360 approval if certain criteria are met. AILA-DC 2012 FALL CONF. 476

169 U NONIMMIGRANT STATUS ( U VISA ) AILA-DC 2012 FALL CONF. 477

170 U Visa - Elements Applicant was a victim of a qualifying crime Indirect victim: Includes certain family members of direct victims who are incompetent, incapacitated (including under 18) or deceased Applicant suffered substantial physical or mental abuse Applicant possesses information Applicant has been helpful, is being helpful, or is likely to be helpful The criminal activity violated the laws of the US The applicant is admissible AILA-DC 2012 FALL CONF. 478

171 U Visa - Qualifying Crimes Abduction Female Genital Mutilation Obstruction of Justice Slave Trade Abusive Sexual Contact Hostage Peonage Torture Blackmail Incest Perjury Trafficking Domestic Violence Involuntary Servitude Prostitution Unlawful Criminal Restraint Extortion Kidnapping Rape Witness Tampering False Imprisonment Manslaughter Sexual Assault Related Crime(s) Felonious Assault Murder Sexual Exploitation Other Attempt to Commit any of the named crimes Conspiracy to Commit any of the named crimes Solicitation to Commit any of the named crimes AILA-DC 2012 FALL CONF. 479

172 U Visa - Benefits Nonimmigrant status valid for 4 years U-visa based work permit is valid for 4 years and does not need to be renewed Can apply for adjustment of status 3 years after initial grant Can petition for qualifying family members in the US or abroad includes spouses, unmarried children under 21, parents (if the victim was under 21), siblings under 18 (if the victim was under 21) Allows for waivers of inadmissibility Can apply for adjustment even if have prior order of deportation AILA-DC 2012 FALL CONF. 480

173 T VISA AILA-DC 2012 FALL CONF. 481

174 T Visa - Elements For persons: Who have been subject to severe trafficking Defined as: the use of force, fraud, coercion for sex trafficking and/or involuntary servitude, peonage, debt bondage, or slavery Who are in the U.S. Who complied with reasonable request for assistance by law enforcement or who are unable to cooperate due to physical or psychological trauma; or who is under 18; and Who would suffer extreme hardship involving unusual and severe harm upon removal AILA-DC 2012 FALL CONF. 482

175 T Visa - Benefits Eligible for employment authorization Eligible for residency after three years or once investigation is complete Eligible to bring derivatives to the US or confer legal status on derivatives May be eligible for continued presence (and work permit) before approval Eligible for certain public benefits AILA-DC 2012 FALL CONF. 483

176 VAWA SELF PETITION AILA-DC 2012 FALL CONF. 484

177 VAWA Self Petition - Elements Subjected to Battery or Extreme Cruelty By a U.S. Citizen or Lawful Permanent Resident Spouse or Parent Includes step-children and adopted children Under 21 years of age Or over 21 and under 25 if shows connection between not filing on time and the abuse Good Faith Marriage File within two years of divorce Good Moral Character AILA-DC 2012 FALL CONF. 485

178 VAWA Self Petition - Benefits Upon approval of the self petition, a VAWA self petitioner is eligible for employment authorization. If self petitioner is/was married to a USC or the child of a USC they are eligible to apply for their residency or may apply for their residency concurrently with their self petition. If self petitioner is/was married to a LPR or are the child of a LPR they may apply for their residency when a visa becomes available. Can naturalize after three years in LPR status Can include derivatives in application AILA-DC 2012 FALL CONF. 486

179 Sample Screening Questions SIJS (If under 21) Note: If the young person is 18 or older and has no open family court case, he or she is probably not eligible, but still encourage the young person to obtain a thorough consult at some point. Do you live with both of your parents? Why not? Have either of your parents ever hit you? Ever mistreated you? Did either of them abandon you? Are either or both of them deceased? T/U Visa Have you ever been forced to work against your will? Have you been the victim of a crime or been hurt by someone in the US? Have you ever talked with the police about something that happened to you or someone close to you? AILA-DC 2012 FALL CONF. 487

180 Sample Screening Questions Asylum Do you fear returning to your home country? VAWA/Family-based/Derivation or Aquisition of Citizenship Do any of your grandparents, parents, step-parents, spouses, siblings, or children have any legal status in the US? AILA-DC 2012 FALL CONF. 488

181 Questions? Paula Fitzgerald Ayuda (703) AILA-DC 2012 FALL CONF. 489

182 10/2/12 USCIS - Frequently Asked Questions Frequently Asked Questions FAQs updated September 14, 2012 Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization. You may request consideration of deferred action for childhood arrivals if you: 1. Were under the age of 31 as of June 15, 2012; 2. Came to the United States before reaching your 16th birthday; 3. Have continuously resided in the United States since June 15, 2007, up to the present time; 4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; 5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012; 6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and 7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Individuals can call USCIS at with questions or to request more information on the deferred action for childhood arrivals process or visit View the Consideration of Deferred Action for Childhood Arrivals Process Video /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

183 10/2/12 USCIS - Frequently Asked Questions About Deferred Action for Childhood Arrivals Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals * Education * Travel * National Security and Public Safety Filing Process Evidence Decisions and Renewals Cases in Other Immigration Processes Avoiding Scams and Preventing Fraud About Deferred Action for Childhood Arrivals Q1: What is deferred action? A1:Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence. Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate an economic necessity for employment. DHS can terminate or renew deferred action at any time at the agency s discretion. Q2: What is deferred action for childhood arrivals? A2: On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Individuals who can demonstrate through verifiable documentation that they meet these /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

184 10/2/12 USCIS - Frequently Asked Questions guidelines will be considered for deferred action. Determinations will be made on a case-bycase basis under the guidelines set forth in the Secretary of Homeland Security s memorandum. Q3: If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization? A3: Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment. Q4: Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order? A4: This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS not ICE pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office s hotline at (staffed 9 a.m. 5 p.m., Monday Friday) or by at [email protected]. Q5: Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals? A5: You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request is pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence. Q6: If my case is deferred, am I in lawful status for the period of deferral? A6: No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status. There is a significant difference between unlawful presence and unlawful status. Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

185 subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.) The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. Because you lack lawful status at the time DHS defers action in your case, you remain subject to all legal restrictions and prohibitions on individuals in unlawful status. Q7: Does deferred action provide me with a path to permanent residence status or citizenship? A7: No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. Q8: If my case is deferred, will I be eligible for premium tax credits and reduced cost sharing through Affordable Insurance Exchanges starting in 2014? A8: No. The Departments of Health and Human Services and the Treasury intend to conform the relevant regulations to the extent necessary to exempt individuals with deferred action for childhood arrivals from eligibility for premium tax credits and reduced cost sharing. This is consistent with the policy under S. 3992, the Development, Relief, and Education for Alien Minors (DREAM) Act of Q9: Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals? A9:This process is only for individuals who meet the specific guidelines announced by the Secretary of Homeland Security. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice. Q10: Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes? A10: Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS s Notice to Appear guidance ( Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, AILA-DC 2012 FALL CONF. 493

186 10/2/12 USCIS - Frequently Asked Questions substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter. Q11: If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes? A11: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of the deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Q12: Does this Administration remain committed to comprehensive immigration reform? A12: Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation s economic and security needs. Q13: Is passage of the DREAM Act still necessary in light of the new process? A13: Yes.The Secretary of Homeland Security s June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status. Q14: Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)? A14: No. You can only request consideration of deferred action for childhood arrivals under this process if you currently have no immigration status and were not in any lawful status on June 15, Return to top AILA-DC 2012 FALL CONF /23

187 10/2/12 USCIS - Frequently Asked Questions Guidelines for Requesting Consideration of Deferred Action For Childhood Arrivals Q1: What guidelines must I meet to be considered for deferred action for childhood arrivals? A1: Pursuant to the Secretary of Homeland Security s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you: 1. Were under the age of 31 as of June 15, 2012; 2. Came to the United States before reaching your 16th birthday; 3. Have continuously resided in the United States since June 15, 2007, up to the present time; 4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; 5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012; 6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and; 7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case. Q2: How old must I be in order to be considered for deferred action under this process? A2: If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines. If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines. In all instances, you cannot be the age of 31 or older as of June 15, 2012, to be considered for deferred action for childhood arrivals. Return to top Education /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

188 10/2/12 USCIS - Frequently Asked Questions Q1: Does currently in school refer to the date on which the request for consideration of deferred action is filed? A1: To be considered currently in school under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process. Q2: Who is considered to be currently in school under the guidelines? A2: To be considered currently in school under the guidelines, you must be enrolled in: a public or private elementary school, junior high or middle school, high school, or secondary school; an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam. Such education, literacy, or career training programs include, but are not limited to, programs funded, in whole or in part, by federal or state grants. Programs funded by other sources may qualify if they are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges, and certain community-based organizations. In assessing whether such an education, literacy or career training program not funded in whole or in part by federal or state grants is of demonstrated effectiveness, USCIS will consider the duration of the program s existence; the program s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam, or in placing students in postsecondary education, job training, or employment; and other indicators of the program s overall quality. For individuals seeking to demonstrate that they are currently in school through enrollment in such a program, the burden is on the requestor to show the program s demonstrated effectiveness. Q3: How do I establish that I am currently in school? A3: Documentation sufficient for you to demonstrate that you are currently in school may include, but is not limited to: evidence that you are enrolled in a public or private elementary school, junior high or middle school, high school or secondary school; or evidence that you are enrolled in an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement, and that the program is funded in whole or in part by federal or state grants or is of demonstrated effectiveness; or evidence that you are enrolled in an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under State law (including a certificate of completion, certificate of attendance, or alternate award), or in AILA-DC 2012 FALL CONF /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g 7/23

189 10/2/12 USCIS - Frequently Asked Questions passing a General Educational Development (GED) exam or other such stateauthorized exam, and that the program is funded in whole or in part by federal or state grants or is of demonstrated effectiveness. Such evidence of enrollment may include: acceptance letters, school registration cards, letters from school or program, transcripts, report cards, or progress reports showing the name of the school or program, date of enrollment, and current educational or grade level, if relevant. Q4: What documentation may be sufficient to demonstrate that I have graduated from high school? A4: Documentation sufficient for you to demonstrate that you have graduated from high school may include, but is not limited to, a high school diploma from a public or private high school or secondary school, or a recognized equivalent of a high school diploma under state law, including a General Education Development (GED) certificate, certificate of completion, a certificate of attendance, or an alternate award from a public or private high school or secondary school. Q5: What documentation may be sufficient to demonstrate that I have obtained a General Education Development (GED)? A5: Documentation sufficient for you to demonstrate that you have obtained a GED may include, but is not limited to, evidence that you have passed a GED exam, or other comparable state-authorized exam, and, as a result, you have received the recognized equivalent of a regular high school diploma under state law. Q6: If I am enrolled in a literacy or career training program, can I meet the guidelines? A6: Yes, in certain circumstances. You may meet the guidelines if you are enrolled in an education, literacy, or career training program that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement. Such programs include, but are not limited to, programs funded by federal or state grants, or administered by providers of demonstrated effectiveness. Q7: If I am enrolled in an English as a Second Language (ESL) program, can I meet the guidelines? A7: Yes, in certain circumstances. You may meet the guidelines only if you are enrolled in an ESL program as a prerequisite for your placement in postsecondary education, job training, or employment and where you are working toward such placement. You must submit direct documentary evidence that your participation in the ESL program is connected to your placement in postsecondary education, job training or employment and that the program is one of demonstrated effectiveness. Q8: Will USCIS consider circumstantial evidence that I have met the education guidelines? A8: No. Circumstantial evidence will not be accepted to establish that you are currently in school, have graduated or obtained a certificate of completion from high school, or have obtained a general education development certificate. You must submit direct documentary AILA-DC 2012 FALL CONF /23

190 USCIS - Frequently Asked Questions evidence to satisfy that you meet the education guidelines. Q9: If I am currently in school and USCIS defers action in my case, what will I have to demonstrate if I request that USCIS renew the deferral after two years? A9: If you are in school at the time of your request and your case is deferred by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal either (1) that you have graduated from the school in which you were enrolled and, if that school was elementary school or junior high or middle school, you have made substantial, measurable progress toward graduating from high school, or, (2) you have made substantial, measurable progress toward graduating from the school in which you are enrolled. If you are currently in an education program that assists students either in obtaining a high school diploma or its recognized equivalent under state law, or in passing a GED exam or other equivalent state-authorized exam, and your case is deferred by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal that you have obtained a high school diploma or its recognized equivalent or that you have passed a GED or other equivalent state-authorized exam. If you are currently enrolled in an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment, and your case is deferred by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal that you are enrolled in postsecondary education, that you have obtained the employment for which you were trained, or that you have made substantial, measurable progress toward completing the program. Specific details on the renewal process will be made available at a later date. Travel Return to top Q1: Do brief departures from the United States interrupt the continuous residence requirement? A1: A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and: 1. The absence was short and reasonably calculated to accomplish the purpose for the absence; 2. The absence was not because of an order of exclusion, deportation, or removal; 3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and 4. The purpose of the absence and/or your actions while outside the United States were not contrary to law. AILA-DC 2012 FALL CONF /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g 9/23

191 10/2/12 USCIS - Frequently Asked Questions New - Q2: May I travel outside of the United States before USCIS has determined whether to defer action in my case? A2: No. After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS. Any travel outside of the United States that occurred before August 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent (see below). Note: If you have been ordered deported or removed, and you then leave the United States, your departure may result in your being considered deported or removed, with potentially serious future immigration consequences. Travel Guidelines Travel Dates Type of Travel Does it Affect Continuous Residence brief casual innocent No Before August 15, 2012 For an extended time Because of an order of exclusion, deportation, or removal To participate in criminal activity Yes After August 15, 2012, and before you have requested deferred action After August 15, 2012, and after you have requested deferred action Any Any Yes. Yes. You cannot travel while your request is under review. You cannot apply for advance parole unless and until DHS has determined whether to defer action in your case. New - Q3: If my case is deferred pursuant to the consideration of deferred action for childhood arrivals process, will I be able to travel outside of the United States? A3: Not automatically. If USCIS has decided to defer action in your case and you want to AILA-DC 2012 FALL CONF /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g 10/23

192 10/2/12 USCIS - Frequently Asked Questions travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis. If USCIS has deferred action in your case under the deferred action for childhood arrivals process after you have been ordered deported or removed, you may still request advance parole if you meet the guidelines for advance parole described above. However, once you have received advance parole, and before you actually leave the United States, you should seek to reopen your case before the Executive Office for Immigration Review (EOIR) and obtain administrative closure or termination of your removal proceeding. Even after you have asked EOIR to reopen your case, you should not leave the United States until after EOIR has granted your request. If you depart after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure may result in your being considered deported or removed, with potentially serious future immigration consequences. If you have any questions about this process, you may call the ICE Office of the Public Advocate through the Office s hotline at (staffed 9 a.m. 5 p.m., Monday Friday) or by at [email protected]. National Security and Public Safety Q1: If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process? A1: No. If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, you will not be considered for deferred action under the new process except where DHS determines there are exceptional circumstances. Q2: What offenses qualify as a felony? A2:A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. Q3: What offenses constitute a significant misdemeanor? A3: For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria: 1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

193 10/2/12 USCIS - Frequently Asked Questions trafficking; or, driving under the influence; or, 2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less. Q4: What offenses constitute a non-significant misdemeanor? A4: For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria: 1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and 2. Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE. Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. Q5: If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the three or more non-significant misdemeanors making me unable to receive consideration for an exercise of prosecutorial discretion under this new process? A5: A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion. It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed. Q6: Will offenses criminalized as felonies or misdemeanors by state immigration laws AILA-DC 2012 FALL CONF /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g 12/23

194 USCIS - Frequently Asked Questions be considered felonies or misdemeanors for purpose of this process? A6: No. Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action pursuant to this process. Q7: Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion? A7: Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process. Q8: What qualifies as a national security or public safety threat? A8: If the background check or other information uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion except where DHS determines there are exceptional circumstances. Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States. Q9: If I am not in removal proceedings but believe I meet the guidelines for an exercise of deferred action under this process, should I seek to place myself into removal proceedings through encounters with CBP or ICE? A9: No. If you are not in removal proceedings but believe that you meet the guidelines you should submit your request for consideration of deferred action for childhood arrivals to USCIS under the process outlined below. Filing Process Return to top Q1: How do I request consideration of deferred action for childhood arrivals? A1:To request consideration of deferred action for childhood arrivals from USCIS, you must submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals to USCIS. This form must be completed, properly signed and accompanied by a Form I-765, Application for Employment Authorization, and a Form I-765WS, Worksheet, establishing your economic need for employment. If you fail to submit a completed Form I-765 (along with the accompanying filing fees for that form, totaling $465), USCIS will not consider your request for deferred action. Please read the form instructions to ensure that you submit all the required documentation to support your request. You must file your request for consideration of deferred action for childhood arrivals at the USCIS Lockbox. You can find the mailing address and instructions on 821d. After your Form I-821D, Form I-765, and Form I-765 Worksheet have been received, USCIS will review them for completeness, including submission of the required fee, /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

195 USCIS - Frequently Asked Questions initial evidence and supporting documents. If it is determined that the request is complete, USCIS will send you a receipt notice. USCIS will then send you an appointment notice to visit an Application Support Center (ASC) for biometric services. Please make sure you read and follow the directions in the notice. Failure to attend your biometrics appointment may delay processing of your request for consideration of deferred action, or may result in a denial of your request. You may also choose to receive an and/or text message notifying you that your form has been accepted by completing a Form G-1145, E-Notification of Application/Petition Acceptance. Each request for consideration of deferred action for childhood arrivals will be reviewed on an individual, case-by-case basis. USCIS may request more information or evidence from you, or request that you appear at a USCIS office. USCIS will notify you of its determination in writing. Note: All individuals who believe they meet the guidelines, including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), may affirmatively request consideration of deferred action for childhood arrivals from USCIS through this process. Individuals who are currently in immigration detention and believe they meet the guidelines may not request consideration of deferred action from USCIS but may identify themselves to their detention officer or to the ICE Office of the Public Advocate through the Office s hotline at (staffed 9 a.m. 5 p.m., Monday Friday) or by at [email protected]. Q2: Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals? A2: Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to exercise prosecutorial discretion under the consideration of deferred action for childhood arrivals process. If you have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety, you will not be considered for deferred action for childhood arrivals except where DHS determines there are exceptional circumstances. Q3: What do background checks involve? A3: Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies. Q4: Can I obtain a fee waiver or fee exemption for this process? A4: There are no fee waivers available for employment authorization applications connected to the deferred action for childhood arrivals process. There are very limited fee exemptions available. Requests for fee exemptions must be filed and favorably adjudicated before an individual files his/her request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions: /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

196 USCIS - Frequently Asked Questions You are under 18 years of age, homeless, in foster care or under 18 years of age and otherwise lacking any parental or other familial support, and your income is less than 150% of the U.S. poverty level. You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the U.S. poverty level. You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150% of the U.S. poverty level. Additional information on how to make your request for a fee exemption is available on Your request must be submitted and decided before you submit a request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence, USCIS will: Accept affidavits from community-based or religious organizations to establish a requestor s homelessness or lack of parental or other familial financial support. Accept copies of tax returns, banks statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level. Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $25,000. Address factual questions through requests for evidence (RFEs). Q5: Will there be supervisory review of decisions by USCIS under this process? A5: Yes. USCIS will implement a supervisory review process in all four Service Centers to ensure a consistent process for considering requests for deferred action for childhood arrivals. USCIS will require officers to elevate for supervisory review those cases that involve certain factors. Q6: Will USCIS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training? A6: Yes. USCIS personnel responsible for considering requests for consideration of deferred action for childhood arrivals will receive special training. New - Q7. Must attorneys and accredited representatives who provide pro bono services to deferred action requestors at group assistance events file a Form G-28 with USCIS? A7. An attorney or accredited representative who provides pro bono assistance to an individual in a workshop setting and who intends to represent the individual after the workshop must file a Form G-28. An attorney or accredited representative who provides pro bono assistance to an individual in a workshop setting, but who does not intend to represent the individual after the workshop, should assess the extent of the relationship with the individual and the nature and type of the assistance provided. On that basis, the attorney or accredited /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

197 10/2/12 USCIS - Frequently Asked Questions representative should determine whether to file a Form G-28. If a Form G-28 is not filed, the attorney or accredited representative should determine whether it would be appropriate under the circumstances to provide the individual and USCIS with a letter noting the limited extent of the representation. New - Q8. When must an individual sign a Form I-821D as a preparer? A8. If someone other than the requestor prepares or helps fill out the Form I-821D, that individual must complete Part 5 of the Form. New - Q9. How should I fill out question nine (9) on the Form I-765, Application for Employment Authorization? A9. When you are filing a Form I-765 as part of a Deferred Action Childhood Arrivals request, question nine (9) is asking you to list those Social Security numbers that were officially issued to you by the Social Security Administration. Decisions and Renewals Return to top Q1: Can I appeal USCIS s determination? A1: No. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of deferred action for childhood arrivals. USCIS will not review its discretionary determinations. You may request a review using the Service Request Management Tool (SRMT) process if you met all of the process guidelines and you believe that your request was denied due to one of the following errors: USCIS denied the request for consideration of deferred action for childhood arrivals based on abandonment and you claim that you did respond to a Request for Evidence within the prescribed time; or USCIS mailed the Request for Evidence to the wrong address, even though you had submitted a Form AR-11, Change of Address, or changed your address online at before the issuance of the Request for Evidence. Q2: If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings? A2: If you have submitted a request for consideration of deferred action for childhood arrivals and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy visit If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you a Notice to Appear. Q3: Can I extend the period of deferred action in my case? /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

198 USCIS - Frequently Asked Questions A3: Yes. Unless terminated, individuals whose case is deferred pursuant to the consideration of deferred action for childhood arrivals process will not be placed into removal proceedings or removed from the United States for a period of two years. You may request consideration for an extension of that period of deferred action. As long as you were not above the age of 30 on June 15, 2012, you may request a renewal after turning 31. Your request for an extension will be considered on a case-by-case basis. Q4: If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization? A4: Yes. If USCIS decides to defer action for additional periods beyond the initial two years, you must also have requested an extension of your employment authorization. Evidence Return to top The following chart provides examples of documentation you may submit to demonstrate you meet the guidelines for consideration of deferred action under this process. Please see the instructions of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, for additional details of acceptable documentation. Examples of Documents to Submit to Demonstrate you Meet the Guidelines Proof of identity Passport or national identity document from your country of origin Birth certificate with photo identification School or military ID with photo Any U.S. government immigration or other document bearing your name and photo Proof you came to U.S. before your 16th birthday Passport with admission stamp Form I-94/I-95/I-94W School records from the U.S. schools you have attended Any Immigration and Naturalization Service or DHS document stating your date of entry (Form I-862, Notice to Appear) Travel records Hospital or medical records Proof of immigration status Form I-94/I-95/I-94W with authorized stay expiration date Final order of exclusion, deportation, or removal issued as of June 15, 2012 A charging document placing you into removal AILA-DC 2012 FALL CONF /23

199 10/2/12 USCIS - Frequently Asked Questions proceedings Proof of Presence in U.S. on June 15, 2012 Proof you continuously resided in U.S. since June 15, 2007 Rent receipts or utility bills Employment records (pay stubs, W-2 Forms, etc) School records (letters, report cards, etc) Military records (Form DD-214 or NGB Form 22) Official records from a religious entity confirming participation in a religious ceremony Copies of money order receipts for money sent in or out of the country Passport entries Birth certificates of children born in the U.S. Dated bank transactions Social Security card Automobile license receipts or registration Deeds, mortgages, rental agreement contracts Tax receipts, insurance policies Proof of your student status at the time of requesting consideration of deferred action for childhood arrivals School records (transcripts, report cards, etc) from the school that you are currently attending in the United States showing the name(s) of the school(s) and periods of school attendance and the current educational or grade level U.S. high school diploma or certificate of completion U.S. GED certificate Proof you are an honorably discharged veteran of the U.S. Armed Forces or the U.S. Coast Guard Form DD-214, Certificate of Release or Discharge from Active Duty NGB Form 22, National Guard Report of Separation and Record of Service Military personnel records Military health records Q1: May I file affidavits as proof that I meet the guidelines for consideration of deferred action for childhood arrivals? A1: Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for USCIS to consider you for deferred action for childhood arrivals. However, affidavits may be used to support meeting the following guidelines only if the documentary evidence available to you is insufficient or lacking: A gap in the documentation demonstrating that you meet the five year continuous residence requirement; and /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

200 10/2/12 USCIS - Frequently Asked Questions A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence. If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances. Should USCIS determine that the affidavits are insufficient to overcome the unavailability or the lack of documentary evidence with respect to either of these guidelines, it will issue a Request for Evidence, indicating that further evidence must be submitted to demonstrate that you meet these guidelines. USCIS will not accept affidavits as proof of satisfying the following guidelines: You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States; You were physically present in the United States on June 15, 2012; You came to the United States before reaching your 16th birthday; You were under the age of 31 on June 15, 2012; and Your criminal history, if applicable. If the only evidence you submit to demonstrate you meet any of the above guidelines is an affidavit, USCIS will issue a Request for Evidence, indicating that you have not demonstrated that you meet these guidelines and that you must do so in order to demonstrate that you meet that guideline. Q2: Will USCIS consider circumstantial evidence that I have met certain guidelines? A2: Circumstantial evidence may be used to establish the following guidelines and factual showings if available documentary evidence is insufficient or lacking and shows that: You were physically present in the United States on June 15, 2012; You came to the United States before reaching your 16th birthday; You satisfy the five year continuous residence requirement, as long as you present direct evidence of your continued residence in the United States for a portion of the required five-year period and the circumstantial evidence is used only to fill in gaps in the length of continuous residence demonstrated by the direct evidence; and Any travel outside the United States during the five years of required continuous presence was brief, casual, and innocent. However, USCIS will not accept circumstantial evidence as proof of any of the following guidelines to demonstrate that you: Were under the age of 31 on June 15, 2012; and Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. AILA-DC 2012 FALL CONF /23

201 10/2/12 USCIS - Frequently Asked Questions For example, if you do not have documentary proof of your presence in the United States on June 15, 2012, you may nevertheless be able to satisfy the guideline circumstantially by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which under the facts presented may give rise to an inference of your presence on June 15, 2012 as well. However, circumstantial evidence will not be accepted to establish that you have graduated high school. You must submit direct documentary evidence to satisfy that you meet this guideline. New - Q3. To prove my continuous residence in the United States since June 15, 2007, must I provide evidence documenting my presence for every day, or every month, of that period? A3. To meet the continuous residence guideline, you must submit documentation that shows you have been living in the United States from June 15, 2007 up until the time of your request. You should provide documentation to account for as much of the period as reasonably possible, but there is no requirement that every day or month of that period be specifically accounted for through direct evidence. It is helpful to USCIS if you can submit evidence of your residence during at least each year of the period. USCIS will review the documentation in its totality to determine whether it is more likely than not that you were continuously residing in the United States for the period since June 15, Gaps in the documentation as to certain periods may raise doubts as to your continued residence if, for example, the gaps are lengthy or the record otherwise indicates that you may have been outside the United States for a period of time that was not brief, casual or innocent. If gaps in your documentation raise questions, USCIS may issue a request for evidence to allow you to submit additional documentation that supports your claimed continuous residence. Affidavits may be submitted to explain a gap in the documentation demonstrating that you meet the five year continuous residence requirement. If you submit affidavits related to the continuous residence requirement, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances during the period as to which there is a gap in the documentation. Affidavits may only be used to explain gaps in your continuous residence; they cannot be used as evidence that you meet the entire five year continuous residence requirement. New - Q4. If I provide my employee with information regarding his or her employment to support a request for consideration of deferred action for childhood arrivals, will that information be used for immigration enforcement purposes against me and/or my company? A4. You may, as you determine appropriate, provide individuals requesting deferred action for childhood arrivals with documentation which verifies their employment. This information will not be shared with ICE for civil immigration enforcement purposes pursuant to INA section 274A unless there is evidence of egregious violations of criminal statutes or widespread abuses. Return to top Cases in Other Immigration Processes /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

202 10/2/12 USCIS - Frequently Asked Questions Q1: Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012? A1: Yes. If you had an application for asylum or cancellation of removal, or similar relief, pending before either USCIS or EOIR as of June 15, 2012, but had no lawful status, you may request consideration of deferred action for childhood arrivals. Q2: Can I request consideration of deferred action for childhood arrivals from USCIS if I am in immigration detention under the custody of ICE? A2: No. If you are currently in immigration detention, you may not request consideration of deferred action for childhood arrivals from USCIS. If you think you may meet the guidelines of this process, you should identify yourself to your detention officer or contact the ICE Office of the Public Advocate so that ICE may review your case. The ICE Office of the Public Advocate can be reached through the Office s hotline at (staffed 9 a.m. 5 p.m., Monday Friday) or by at [email protected] Q3: If I am about to be removed by ICE and believe that I meet the guidelines for consideration of deferred action for childhood arrivals, what steps should I take to seek review of your case before removal? A3: If you believe you can demonstrate that you meet the guidelines and are about to be removed, you should immediately contact either the Law Enforcement Support Center s hotline at (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office s hotline at (staffed 9 a.m. 5 p.m., Monday Friday) or by at [email protected]. Q4: If individuals meet the guidelines for consideration of deferred action for childhood arrivals and are encountered by Customs and Border Protection (CBP) or ICE, will they be placed into removal proceedings? A4: This policy is intended to allow CBP and ICE to focus on priority cases. Pursuant to the direction of the Secretary of Homeland Security, if an individual meets the guidelines of this process, CBP or ICE should exercise their discretion on a case-by-case basis to prevent qualifying individuals from being apprehended, placed into removal proceedings, or removed. If individuals believe that, in light of this policy, they should not have been placed into removal proceedings, contact either the Law Enforcement Support Center s hotline at (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office s hotline at (staffed 9 a.m. 5 p.m., Monday Friday) or by at [email protected]. Q5: If I accepted an offer of administrative closure under the case-by-case review process or my case was terminated as part of the case-by-case review process, can I be considered for deferred action under this process? A5: Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals even if you have accepted an offer of administrative closure or termination under the case-by-case review process. If you are in removal proceedings and have already been identified as meeting the guidelines and warranting discretion as part of ICE s case-by-case review, ICE already has offered you deferred action AILA-DC 2012 FALL CONF /23

203 10/2/12 USCIS - Frequently Asked Questions for a period of two years, subject to renewal. Q6: If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process? A6: Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals from USCIS even if you declined an offer of administrative closure under the case-by-case review process. Q7: If my case was reviewed as part of the case-by-case review process but I was not offered administrative closure, can I be considered for deferred action under this process? A7: Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action for childhood arrivals from USCIS even if you were not offered administrative closure following review of you case as part of the case-by-case review process. Q8: How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda? A8: If USCIS determines that you do not satisfy the guidelines or otherwise determines you do not warrant an exercise of prosecutorial discretion, then it will decline to defer action in your case. If you are currently in removal proceedings, have a final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda. Q9: What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer? A9: If you meet the guidelines and have been served a detainer, you should immediately contact either the Law Enforcement Support Center s hotline at (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate either through the Office s hotline at (staffed 9 a.m. 5 p.m., Monday Friday) or by at [email protected]. Avoiding Scams and Preventing Fraud Return to top Q1: Someone told me if I pay them a fee, they can expedite my deferred action for childhood arrivals request, is this true? A1: No. There is no expedited processing for deferred action. Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money. Visit our Avoid Scams page to learn how you can protect yourself from immigration scams. /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

204 10/2/12 USCIS - Frequently Asked Questions Make sure you seek information about requests for consideration of deferred action for childhood arrivals from official government sources such as USCIS or the Department of Homeland Security. If you are seeking legal advice, visit our Find Legal Services page to learn how to choose a licensed attorney or accredited representative. Q2: What steps will USCIS and ICE take if I engage in fraud through the new process? A2: If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have your case deferred or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States. Return to top Last updated: 09/05/2012 Plug-ins /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23

205 THE NEW COLOSSUS : IMMIGRATION REMEDIES FOR UNACCOMPANIED MINORS AND VICTIMS OF DOMESTIC VIOLENCE by Catherine Ward-Seitz and Jeffrey Crusha Catherine Ward-Seitz is the Regional Immigration Coordinator for Bay Area Legal Aid and focuses on immigration relief for survivors of domestic violence and sexual assault. Bay Area Legal Aid provides free legal services to low income clients in seven San Francisco Bay Area counties. She is also the Nonprofit Coordinator for the Northern California chapter of AILA and co-author of the 2nd edition of the ILRC s U Visa Manual. Catherine has a J.D. from U.C. Hastings and a B.A. in Latin American Studies from U.C. Berkeley. She has been working in the field of immigration law since 1990, starting out as a legal assistant and then a BIA Accredited Representative before her admission to the California bar in December of Before joining Bay Area Legal Aid in July of 2009, she worked at Canal Alliance, the International Institute of the East Bay, and the private immigration law firm of Simmons & Ungar. She is bilingual in Spanish and English. Jeffrey Crusha is a Senior Associate in the New York office of Fragomen, Del Rey, Bernsen & Loewy LLP, where he specializes in business immigration law and is involved in the firm s pro bono activities at the organizational level. Mr. Crusha is a member of Phi Beta Kappa and is admitted to practice law in the state of New York. He is a graduate of Boston College Law School (2004), and Santa Clara University (B.S., B.A., 2000), where he received degrees in political science and Spanish studies, magna cum laude. Originally from California, Mr. Crusha has lived in Spain, Mexico, Ireland, and Belgium and speaks fluent Spanish, French, and proficient Italian. ********** In the last 20 years, the U.S. Congress has implemented significant immigration provisions to help combat domestic violence and human trafficking to protect special classes of vulnerable immigrants, including unaccompanied minors, victims of domestic violence, victims of human trafficking and other serious qualifying criminal activity. Notably, the Violence Against Women Act (VAWA), passed in 1994, and the Victims of Trafficking and Violence Protection Act (TVPA), passed in 2000, created new nonimmigrant and immigrant classifications for victims of domestic violence (VAWA), unaccompanied minors (Special Immigrant Juvenile Status SIJS), victims of qualifying criminal activity (U nonimmigrants) and victims of human trafficking (T nonimmigrants). [Violence Against Women Act of 1994 (VAWA), Pub. L. No (Sept. 13, 1994); The Violence Against Women Act of 2000 (VAWA 2000), Pub. L. No (Oct. 11, 2000); The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. No (Jan. 5, 2006); Trafficking Victims Protection Act of 2000 (TVPA), Pub. L. No (Oct. 28, 2000); Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003), Pub. L. No (Dec. 19, 2003); William Wilberforce Trafficking Victims Protection Reauthorization Act, Pub. L. No (Dec. 23, 2008).] With the addition of these categories, advocates for immigrant victims rights have been equipped with the prospect of empowering previously disenfranchised immigrant groups: through immigration relief, victims are granted the chance to change their lives and to ensure a more stable future for their families. The international recognition of human rights violations particular to women and children eventually led to the statutory codification of laws designed to help protect women and children from abusive domestic relationships and from predators engaged in human trafficking. The passage of the VAWA and the TVPA triggered a rise in national awareness about human rights issues and fostered a new era in U.S. immigration laws that enfranchised immigrant victims with the hope of legal immigration status and a path to permanent residence. In light of these relatively new legal remedies, The New Colossus, the classic sonnet authored by Emma Lazarus and engraved on the Statue of Liberty, conveys a poignant message that epitomizes a powerful symbol for victimized immigrant women and children. A mighty woman with a torch, whose flame Is the imprisoned lightning, and her name Mother of Exiles. From her beacon-hand Glows world-wide welcome Give me your tired, your poor, Your huddled masses yearning to breathe free. 182 AILA-DC 2012 FALL CONF. 513

206 IMMIGRATION REMEDIES FOR UNACCOMPANIED MINORS AND VICTIMS OF DOMESTIC VIOLENCE 183 This article summarizes two common immigration remedies for vulnerable immigrants, including the VAWA self-petition and SIJS special immigrant petition, including analysis of relevant inadmissibility provisions, immigration-related consequences and practice tips to advise practitioners how to successfully prepare and effectively counsel clients about SIJS and VAWA. AN IMMIGRATION REMEDY FOR UNACCOMPANIED MINORS: WHAT IS SIJS? Section 101(a)(27)(J) of the Immigration and Nationality Act (INA), as amended by the William Wilberforce Trafficking Victim Protection Reauthorization Act of 2008 (TVPRA), is the statutory basis for recognition of immigration rights for unaccompanied minors as special immigrants, enabling children under the age of 21, who have been the victims of parental abuse, abandonment or neglect to self-petition for permanent residence. The TVPRA expanded the definition of Special Immigrant Juvenile. Specifically, a Special Immigrant Juvenile is defined as an immigrant who is present in the United States: (i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien s best interest to be returned to the alien s or parent s previous country of nationality or country of last habitual residence; and WHAT CONSTITUTES DEPENDENCY FOR SIJS? Pursuant to INA 101(a)(27)(J), an immigrant who is eligible has been declared dependent on a juvenile court. As such, the first step in the application process involves obtaining a dependency order including the court s special order that reunification with one or both parents is not viable due to abuse, neglect or abandonment, or a similar basis in state law and that it is not in the child s best interest to return to his or her country of origin. Practice Pointer: In SIJS proceedings, the first step in establishing prima facie eligibility often involves appearing in a family or juvenile court. What is considered a juvenile court varies from jurisdiction to jurisdiction, but 8 CFR (a) states it is a court with jurisdiction to make judicial determinations about custody and care of juveniles. In the state of New York, for example, this may include Family Court, Surrogate s Court, or the Supreme Court. For purposes of obtaining a dependency order, state law will determine what constitutes dependency. In some jurisdictions, appointment of a guardian, custody proceedings or a determination for long-term eligibility for foster care may meet the legal standard. WHEN DOES THE SIJS PETITION NEED TO BE FILED? To be eligible under SIJS, an applicant must apply prior to turning 21 and applicants are encouraged to concurrently file forms I-360 and I-485. In addition, 235(d)(6) of the TVPRA 2008 provides protection to SIJ petitioners against aging-out. In effect, if a SIJS petitioner was under the age of 21 on the date that a SIJS petition was properly filed, U.S. Citizenship and Immigration Services (USCIS) cannot deny the petition regardless of the petitioner s age at the time of adjudication, as long as the child s dependency order is unexpired, or has not been otherwise terminated or vacated. Note, however, that the terms of the required dependency orders may vary among different jurisdictions, so practitioners should closely track relevant local law. The Administrative Appeals Office (AAO) designated its decision in Matter of Perez Quintanilla (June 7, 2007) as a USCIS-adopted decision for purposes of determining the scope of dependency where the court AILA-DC 2012 FALL CONF. 514

207 AILA IMMIGRATION PRACTICE POINTERS extends its jurisdiction beyond the beneficiary s 18th birthday, unless the juvenile court order states otherwise. [Matter of Perez Quintanilla, A (AAO June 7, 2007).] Practice Pointer: Documenting the applicant s age is critical for the success of the petition, so an application must include evidence of the child s age. Although an original birth certificate is the best form of evidence to demonstrate the applicant s age, many children may not have access to their birth certificates. If a birth certificate is unavailable, an applicant should be advised to document attempts to prove their age. For example, applicants may provide a baptismal certificate, school records, medical records or notarized affidavits from people who witnessed their birth. Unless your client is also seeking asylum, applying for a valid foreign passport is also recommended. WHAT ARE THE INADMISSIBLITY PROVISIONS AND WAIVERS FOR SIJS PETITIONERS? SIJS applicants are specifically exempted from several grounds of inadmissibility, including: INA 212(a)(4) (public charge); INA 212(a)(5)(A) (labor certification); INA 212(a)(6)(A) (aliens present without admission or parole); INA 212(a)(6)(C) (misrepresentation or fraud); INA 212(a)(6)(D) (stowaways); INA 212(a)(7)(A) (Lack of valid entry documentation); and INA 212(a)(9)(B) (aliens unlawfully present). [INA 245(c)(2), (h)(1)/(h)(2)(a) (as amended by the TVPRA of 2008).] However, there are also delineated unwaivable grounds of inadmissibility, including: INA 212(a)(2)(A) (conviction of certain crimes involving moral turpitude); INA 212(a)(2)(B) (conviction of multiple crimes); INA 212(a)(2)(C) (controlled substance traffickers); INA 212(a)(3)(A) (security and related grounds); INA 212(a)(3)(B) (terrorist activities); INA 212(a)(3)(C) (foreign policy consequences); and INA 212(a)(3)(E) (participants in Nazi persecution, genocide, torture or extrajudicial killing). Practice Pointer: Practitioners should understand there is a unique discretionary SIJS waiver covering additional grounds of inadmissibility, with the exceptions noted above, for humanitarian purposes, family unity, or when it is otherwise in the public interest. [INA 245(h)(2)(B).] If a waiver is required, practitioners should submit the request on form I-601, and carefully document the petitioner s eligibility. Further, when weighing the remedy sought, practitioners should carefully consider how SIJS inadmissibility exemptions and waivers compare vis-à-vis other potential remedies. WHAT EFFECT DOES SIJS HAVE ON THE PETITIONER S ABILITY TO SPONSOR HIS OR HER PARENTS? A plain reading of the statute indicates that an immigrant is eligible if reunification with 1 or both of the immigrant s parents is not viable. [INA 101(a)(27)(J).] Thus, the immigrant petitioner may still be eligible, even if he or she resides in the custody of his or her natural or adoptive parent. However, pursuant to INA 101(a)(27)(J)(iii)(II), no natural parent or prior adoptive parent of a child who receives SIJ status can receive immigration status through the child. Practice Pointer: Practitioners should understand the ramifications of applying for SIJS may preclude the immigrant from sponsoring his or her parents, even if the petitioner is eligible based on neglect, abuse or abandonment by only one parent. As such, practitioners should carefully consider alternative immigration AILA-DC 2012 FALL CONF. 515

208 IMMIGRATION REMEDIES FOR UNACCOMPANIED MINORS AND VICTIMS OF DOMESTIC VIOLENCE 185 remedies, including potential claims for asylum, VAWA, and/or U or T nonimmigrant status, where eligible. In many cases, an immigrant may lose eligibility for filing for SIJS based on age by not obtaining the needed order before turning 18 or failing to file the SIJS petition before turning 21. Practitioners should be advised the remedy is available in both affirmative and defensive proceedings, but form I-360 should be filed with USCIS even if the client is in proceedings. AN IMMIGRATION REMEDY FOR VICTIMS OF DOMESTIC ABUSE: WHAT IS VAWA? VAWA self petitioners include the spouse or child of a U.S. citizen (USC), the parent of a 21-year or older USC, or the spouse or child of a lawful permanent resident (LPR), who have been battered or subject to extreme cruelty by their qualifying relative. In limited circumstances, the self-petitioner can be the unmarried son or daughter of a USC or LPR if the abuse is one central reason for the delay in filing and the I-360 is filed before the son or daughter turns 25. Like SIJS applicants, VAWA petitioners may also self-petition, allowing the victims to proceed through the immigration process without the assistance or knowledge of the abusive USC or LPR family member. In order to self petition under VAWA, the self petitioner must be able to demonstrate good moral character, document the abusive family member s status, document the abusive relationship and, if applying as a spouse, document that the marriage was entered into in good faith and that the couple resided together during the marriage. All VAWA self petitions are filed at the Vermont Service Center (VSC), but the adjustment applications are transferred to the local office for adjudication. WHAT ARE THE MOST COMMON ISSUES RAISED IN RFES IN VAWA PETITIONS? A common issue in VAWA self-petitions raised by Requests for Evidence (RFEs) involves the requirement of documenting that the marriage was entered into in good faith. Most domestic violence victims leave the abusive relationship before they have consulted with an immigration attorney, so they may leave their spouse without first collecting documentation showing the good faith of the marriage. Further, due to the abusive nature of the relationship that results in a loss of control and a sense of isolation on the part of the victim, traditional good faith marriage documents such as joint bank accounts and other joint financial documents are commonly unavailable. Practice Pointer: The key in documenting the good faith of the marriage is to provide any available documentation and also submit a declaration in which the client explains why she cannot obtain additional documents. The top tier of evidence includes birth certificates of children born to the couple, joint lease or mortgage agreements, joint tax returns, joint bank accounts or credit cards, and joint insurance policies. Utility bills or other mail addressed to the couple or to each of the parties showing the same address are also very helpful, as well as photographs of the couple together and of the wedding and affidavits from people who knew the couple. Because VAWA clients do not often have these documents, a very good practice pointer is to go through the above list of documentation and explain why any of it is missing and if possible have the client explain how the absence of the document connects to the cycle of abuse and control. Another common issue raised in RFEs involves adequate documentation of the abuse. Police reports, restraining orders, counselor letters, and evidence of a stay in a domestic violence shelter are ideal, but many clients must rely solely on their own declarations or letters from friends in whom they have confided. If the client s declaration is your only or principal source of evidence regarding the abuse, practitioners should be advised to ensure the affidavit is detailed and written in the client s own words. VSC VAWA Unit staff has stated on a number of occasions that they prefer when declarations are handwritten by the clients and submitted with a translation. In some instances, clients will not be able to convey sufficient detail in their own words, so practitioners should counsel their clients through the interview process to help them write the declarations, knowing that the best evidence is written in the words of the client. AILA-DC 2012 FALL CONF. 516

209 AILA IMMIGRATION PRACTICE POINTERS WHAT EXCEPTIONS AND WAIVERS ARE AVAILABLE TO VAWA PETITIONERS? It is important to remember that unlike SIJS or U nonimmigrant visa cases, which involve generous inadmissibility exceptions, in VAWA cases, practitioners must carefully consider the waivers that are available for the client s potential inadmissibility issues. It is important to note that VAWA petitioners are not subject to INA 212(a)(6)(A) for aliens present without admission or parole, but other inadmissibility grounds do apply, and must be addressed, if applicable, as explained below. In particular, VAWA self petitioners may apply for inadmissibility waivers, relating to: INA 212(a)(1)(A)(i) (Health-related grounds); INA 212(a)(2)(A)(i)(I) (Crimes involving moral turpitude); INA 212(a)(2)(A)(i)(II) (Drug conviction relating to simple possession of marijuana); INA 212(a)(2)(B) (Multiple criminal convictions); INA 212(a)(2)(D) (Prostitution and commercialized vice); INA 212(a)(2)(E) (Crimes with immunity from prosecution); INA 212(a)(6)(C)(i) (Misrepresentation or fraud); and INA 212(a)(4)(C)(i) (Public charge). Practice Pointer: VAWA applicants benefit from their own version of the misrepresentation waiver. While a traditional adjustment applicant will have to show extreme hardship only to their USC or LPR spouse or parent, a VAWA adjustment applicant in need of a fraud waiver may demonstrate hardship to themselves and/or their children. [INA 212(a)(6)(A)(i) (waiver: INA 212(i)).] Practitioners should address the traditional hardship factors involving medical or educational needs, as well as the special VAWA hardship factors such as the need for ongoing therapy and the continued need for protective orders that may not be available in the home country. For VAWA waivers, practitioners are advised to file form I-601 with the Vermont Service Center even though it will eventually be adjudicated by the district office. DOES THE BAR FOR UNLAWFUL PRESENCE PERTAIN TO VAWA PETITIONERS? Pursuant to INA 212(a)(9)(B) (C), VAWA petitioners may be subject to the bars for unlawful presence, including after previous immigration violations. However, VAWA applicants who have triggered the three or ten-year bar may demonstrate hardship to a USC or LPR spouse or parent (just as a regular family-based petitioner can), and also may be able to waive the INA 212(a)(9)(B) bars by showing a substantial connection between the unlawful presence and the abuse. There is also language in the statute indicating that the applicant may be exempt from the bar if the applicant arrived before April 1, 1997, but implementation of that provision has not been consistent in local offices. [INA 212(a)(9)(B)(iii)(IV).] Again, the waiver is requested by filing form I-601 at the VSC. With regard to the INA 212(a)(9)(C) permanent bar, an exception under VAWA applies, so filing form I-601 is not necessary. To show that the VAWA adjustment applicant qualifies for the exception to the permanent bar, practitioners should document a connection between the abuse and the unlawful entry, exit, or re-entry, and although the statute states only one ground must be demonstrated to obtain relief, it is highly recommended to draw a connection between all three grounds, where possible. Practice Pointer: For clients with unlawful presence bars and no clear connection between the triggering of the bar and the abuse, a U nonimmigrant visa is an ideal alternative if a police report has been made. Similarly if your VAWA adjustment applicant has a prior removal order and is at risk of being subject to reinstatement at her adjustment interview, filing for a U nonimmigrant visa may be a better option. Filing only the I-360 and not the adjustment application and then living with employment authorization only is also an option. AILA-DC 2012 FALL CONF. 517

210 IMMIGRATION REMEDIES FOR UNACCOMPANIED MINORS AND VICTIMS OF DOMESTIC VIOLENCE 187 WHO MAY BE CONSIDERED VAWA DEPENDENTS? Pursuant to INA 204(a)(1)(D)(v), although VAWA children may self petition until age 25 if they can attribute the delay in filing on account of the abuse suffered, a derivative child of a battered spouse may be included in the parent s application without filing a separate petition. Practice Pointer: Under VAWA, one tremendous advantage that VAWA derivative or child self petitioners have over U nonimmigrant visa applicants is the application of the Child Status Protection Act (CSPA). [Child Status Protection Act (CSPA), Pub. L. No (Aug. 6, 2002).] As long as the self petition based on a USC abuser is filed before the child turns 21, the derivative beneficiaries are protected by CSPA and self petitions based on LPR abusers are entitled to the same age-out protections for traditional family-based cases in the 2A preference category (subtracting the time that the petition was pending from the child s age). CONCLUSION Navigating the turbulent waters of complex USCIS RFEs and INA inadmissibility provisions are critical to ensuring the successful advocacy on behalf of vulnerable SIJS and VAWA petitioners. Through a holistic analysis of possible remedies and potential effects on derivative beneficiaries, practitioners may more effectively advocate based on their client s overall needs. For public interest or pro bono attorneys alike, the satisfaction in successfully counseling clients in SIJS or VAWA matters are truly rewarding experiences that not only benefit the lives of the clients, but can also positively impact the lives of children and elderly family members who are also trapped in the cycle of abuse. Like the Statue of Liberty, which still stands as a beacon of hope for disenfranchised immigrants, the careful application of immigration related remedies by skilled legal practitioners furthers our common goal to build a better society through zealous advocacy for the most susceptible members of our communities. AILA-DC 2012 FALL CONF. 518

211 Deferred Action for Childhood Arrivals (DACA) Cases Top Ten Practice Pointers Thanh Van T. Doan and Jill Marie Bussey The Deferred Action for Childhood Arrivals (DACA) initiative offers an opportunity for certain undocumented individuals to defer removal and to gain work authorization. In the context that there is no other immigration reform at this time, seeking DACA may be a good choice for some clients while other clients may wish to explore other forms of relief. DACA provides choice but there may be risk involved for your client and your practice. The following practice tips are our top ten selections for a successful practice and representation for your clients. 1. Stay abreast of and report developments to your clients. The DACA process is still an infant. It was developed in just sixty days and will continue to evolve for some time. The USCIS web site is updated regularly: Make sure that you are aware and understand developments and are not relying on prior FAQs or guidance. AILA InfoNet also reports and summarizes significant updates. 2. Pre screen potential clients very carefully for potential conflict of interest issues (i.e., representing employer client/employee client; representing family members). 3. Inform your clients and potential clients of the process and ask that they read information carefully before attending first consult. 4. Establish a fee schedule that makes sense for your practice. DACA cases will range in complexity and all will require time for consulting. Consider consulting mixed with flat or fixed rates. 5. Review and revise your client services agreement to clearly indicate that there can be no guaranteed result and consider a risk waiver. Review your procedure for representing minors. 6. Review and develop client intake and data questionnaires to ensure questions are broad. 7. Use telephone consults as a way to augment intake questionnaires and to identify immigration alternatives. 8. Know your limits as a practitioner and do not take on cases that you are not comfortable with. 9. Seek the assistance and guidance of criminal defense attorneys if your client has been charged or arrested. Make sure your client has the right documentation and that you fully review it before making a decision to submit to USCIS. 10. Set and review thresholds for guidance on whether to file or not, discuss & benchmark with others in the bar. AILA-DC 2012 FALL CONF. 519

212 Final tip keep up the good work! Your representation of young immigrants who are seeking a way to better themselves is commendable. By attending this session, reading these materials, and following the tips above you are demonstrating your commitment to high quality client service and responsible practice management. AILA-DC 2012 FALL CONF. 520

213 DREAMERS STATEMENT OF UNDERSTANDING 1. DACA is a form of discretionary relief (meaning it is not a guaranteed) available to individuals that meet the 7 criteria the Department of Homeland Security has outlined. Determinations will be made on a case-by-case basis. 2. DACA does not grant lawful status, but is simply a period of authorized stay in the U.S. Further, DACA does not grant lawful permanent resident status or citizenship. 3. DACA does not excuse any previous or subsequent periods of unlawful presence. 4. DACA is valid for a period of 2 years and is subject to renewal. 5. If I am currently enrolled in a GED or other type of program, I must have made substantial progress within my program to be considered for renewal after the end of the first two years. 6. I may be eligible for employment authorization, if I show economic necessity for employment. 7. My information is protected from disclosure to Immigration and Customs Enforcement ( ICE ) for enforcement purposes, unless I pose a threat to national security (terrorismrelated) or public safety (criminal activities). 8. I will be required to complete biometrics and understand that if I miss my scheduled appointment, my application may be significantly delayed or denied. 9. If my application for DACA is denied, I cannot appeal the decision and will not receive a refund of any fees paid to USCIS or my attorney. 10. DACA may be modified or rescinded at any time without notice. I understand the following information concerning my application for Deferred Action for Childhood Arrivals ( DACA ) and would like to make an affirmative application for DACA. Print Name Date: Signature AILA-DC 2012 FALL CONF. 521

214 Evidentiary Requirements for Deferred Action for Childhood Arrivals (DACA) AILA D.C. Chapter Fall Conference 2012 Law Office of Thanh Van T. Doan AILA-DC 2012 FALL CONF. 522

215 Evidentiary Requirements for DACA Documents to establish: Identity Immigration status on June 15, 2012 Physical presence and continuous residence in the United States Fulfillment of educational requirements Fulfillment of military service requirements Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 523

216 Establish Identity AILA-DC 2012 FALL CONF. 524

217 Evidentiary Requirements for DACA Passports Doc Establish Identity: Other national identity documents that include a photo or fingerprint Birth certificates, school, or military documents that include a photo U.S. government immigration or other documents that include both applicant s name and photo other relevant documents Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 525

218 IMMIGRATION STATUS ON JUNE 15, 2012 AILA-DC 2012 FALL CONF. 526

219 Evidentiary Requirements for DACA Immigration status on June 15, 2012 Arrival/Departure record indicating authorized stay has expired Final orders of exclusion/deportation or removal issued before June 15, 2012 Charging documents i.e. NTA Applicants who entered the U.S. without inspection and have never been in removal proceedings, do not need to submit evidence of lack of status **Matter of Arguillan, 17 I&N Dec. 308 (BIA 1980) and Matter of Quliantan, 25 I&N Dec. 285 (BIA 2010) Do NOT concede EWI! Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 527

220 Physical Presence & Continuous Residence in the United States AILA-DC 2012 FALL CONF. 528

221 Evidentiary Requirements for DACA Physical Presence & Continuous Residence Entered the United States before turning 16 Continuously resided in the United States since June 15, 2007 Physically present in the United States on June 15, 2012 Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 529

222 Evidentiary Requirements for DACA Entered the U.S. Before Turning 16 Include but not limited to: Passports with admission stamps Arrival/Departure records Any INS/DHS document with date of entry including NTA School records with name of school, dates of attendance Travel records e.g. travel tickets Hospital or medical record with name of provider/facility and dates of treatment Official records from religious institution establishing applicant was present at a religious ceremony on a particular date Other relevant documents** ***Circumstantial evidence accepted*** Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 530

223 Evidentiary Requirements for DACA Physical presence on June 15, 2012 & Continuous residence Include but not limited to: C Rent receipts, utility bills, other receipts, or letters from companies that include dates of services applicant received the services in the United States, money order receipts, dated bank transactions, contracts the applicant was a party to e.g. deeds, mortgages, rental/lease agreements, car loan, title, and registration School records with name of school, dates of attendance e.g. transcripts or report cards, military records, official records from religious institution, hospital or medical records Postmarked letters establishing applicant s address in the United States Employment records with applicant s name,, name of employer, dates of employment, tax returns** Other relevant documents see 8 C.F.R (a)(2); (e), (f); (i), (j); and ***Circumstantial evidence accepted*** Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 531

224 Educational Requirements AILA-DC 2012 FALL CONF. 532

225 Evidentiary Requirements for DACA Include but not limited to: Educational Requirements Diploma from U.S. high school or secondary school C GED certificate or other recognized equivalent of a high school diploma under state law e.g. certificate of completion, certificate of attendance from U.S. high school or secondary school Other documentation that applicant has passed GED or state-authorized exam School or educational program records, including report cards, school transcripts, progress reports, acceptance letters, school registration cards and/or letters from school or program that include school/program name, applicant s current grade level, and dates of attendance Other relevant documents ***Circumstantial evidence and Affidavits will NOT be accepted*** Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 533

226 Military Service AILA-DC 2012 FALL CONF. 534

227 Evidentiary Requirements for DACA Military Service* Evidence of honorable discharge from military service include but not limited to: Form DD-214 Certificate of Release or Discharge from Active Duty NGB Form 22 National Guard Report of Separation and Record of Service ***Affidavits will NOT be accepted*** Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 535

228 Circumstantial Evidence & Affidavits AILA-DC 2012 FALL CONF. 536

229 Evidentiary Requirements for DACA CANNOT be used to: Establish educational requirements Prove military service Prove applicant s age on June 15, 2012 Circumstantial Evidence In the absence of other documentation, circumstantial evidence MAY be used to prove: Physical presence on June 15, 2012 Arrival in the U.S. before turning 16 Fill in gaps in direct evidence demonstrating 5-year continuous residence Show departures during the 5 years were brief, casual, and innocent C Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 537

230 Evidentiary Requirements for DACA CANNOT be used to: Affidavits C Establish educational requirements Prove military service Physical presence on June 15, 2012 Arrival in the U.S. before turning 16 Under age 31 Criminal history MAY be used to: Fill in gaps to prove 5-year continuous residence Show departures during the 5 years were brief, casual, and innocent **Must submit 2 or more affidavits from other people with personal knowledge of relevant events and circumstances Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 538

231 Practice Tips AILA-DC 2012 FALL CONF. 539

232 Evidentiary Requirements for DACA INSPECT documents: The Devil is in the Details C Employment documents stolen SSN, claim to citizenship, identity fraud? Financial documents questionable purchases? School documents disciplinary issues, counselor s notes, gang activity, federal financial aid i.e. claim to citizenship? Previous applications for immigration benefits inconsistent information? Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 540

233 Evidentiary Requirements for DACA Be Resourceful!! C Other sources/forms of evidence: Migrant Student Information Exchange (MSIX) State agencies DMV/MVA District court moving violations Extracurricular activities Law Office of Thanh Van T. Doan, LLC 2012 AILA-DC 2012 FALL CONF. 541

234 MSIX Implementation Status 1 of 2 11/6/2012 2:37 PM MSIX Implementation Status << Back AILA-DC 2012 FALL CONF. 542

235 MSIX Implementation Status 2 of 2 11/6/2012 2:37 PM Date Last Updated: October 25, 2012 AILA-DC 2012 FALL CONF. 543

236 TRACK 2 - AFTERNOON - EMPLOYMENT BASED IMMIGRATION - NONIMMIGRANT EMPLOYER COMPLIANCE: SURVIVING AND AVOIDING AUDITS AND SITE VISITS: MATERIALS AILA-DC 2012 FALL CONF. 544

237 DOL H-1B Update 2012 Administrative Review Board Cases to Note By Brian S. Green, Esq. 1 During the first three quarters of 2012, the U.S. Department of Labor s (DOL) Administrative Review Board (ARB) issued decisions clarifying important legal questions surrounding the bona fide termination of H-1B workers, the requirements of proper notice of the filing of Labor Condition Applications (LCAs), the timeliness requirement for requesting a hearing before an ALJ to dispute a determination made by the DOL's Wage and Hour Division (WHD) and whether and when a prevailing wage determination obtained for a PERM application increases the wages owed to an H-1B worker. Three of these cases were litigated by the H-1B workers pro se and reflect common mistakes that can be made in the process of challenging WHD determinations and ALJ decisions. Before 2012 brings more controlling legal authority in an already complex area of business immigration practice, attorneys should carefully review the following appellate decisions in order to give up-to-date counsel to their employer or employee clients. Administrator, Wage and Hour Div., USDOL v. Camo Technologies, Inc. Posting Requirements for Notice of Filing of LCAs; Willful Violations for Failure to Give Notice In Admin. v. Camo Technologies, Inc., ARB No (ARB August 31, 2012), the DOL s Administrative Law Judge (ALJ) found that the WHD Administrator did not establish a willful violation of the notice requirement found at 20 CFR See, Camo Technologies, at 2. Evidence presented at the ALJ hearing showed that the employer maintained a policy where it posted notice of the filing of LCAs at its main office but did not always post proper notices at client locations. The employer admitted that it posted its notices at its direct clients only after obtaining permission from that entity. In situations where the direct client then placed the H-1B worker its own client s facility (a 3 rd party work location), Camo Technologies only completed some type of posting where permission was granted to it and the H-1B worker personally made the posting. If permission was denied at either a 2 nd or 3 rd party work site, Camo Technologies nevertheless sent its H-1B worker to that location. Id., at 5, 7-8. The ARB reversed the ALJ s decision and found that Camo Technologies had prior warnings from the DOL in 2001 (by from the WHD) and after a 2006 WHD determination letter found notice violations. The employer admitted that it did not change its posting policy after the 2001 warning or 2006 determination letter and did not make required postings at sixty-seven (67) non-camo Technologies-owned work sites. Id., at 7-9. Based on the prior warnings given by WHD and the admissions made by the employer, the ARB found that Camo Technologies knowingly and intentionally violated the posting requirement, which led to a larger fine and two (2) year debarment from receiving immigration-related approvals under DOL and U.S. Citizenship and Immigration Services (USCIS) programs. Id. The ARB clearly stated that satisfaction of the notice requirement must precede the filing of LCAs and the placement of H-1B employees at worksites. Id., at 8. 1 Brian Green is an experienced business immigration lawyer, trial attorney and litigator who practices at Murthy Law Firm in Owings Mills, Maryland and focuses on DOL, CBP, DOS and federal litigation cases. He received his J.D. from Case Western Reserve University's School of Law in Cleveland, Ohio, and his B.A. from Washington & Jefferson College in Washington, Pennsylvania. He is admitted to practice in Pennsylvania and West Virginia and grew up in Cumberland, Maryland. AILA-DC 2012 FALL CONF. 545

238 Arvind Gupta v. Headstrong, Inc. ALJ Lacks Jurisdiction to Conduct a Hearing After WHD Found No Reasonable Cause to Conduct an Investigation Based on a Late-Filed LCA Complaint In Arvind Gupta v. Headstrong, Inc., ARB Nos , (ARB June 29, 2012), an H-1B employee worked in H-1B status in 2006, was terminated and accepted severance compensation and later filed complaints in 2008 and He was given written notice of his termination in November 2006, received a severance payment of $8, in December 2006 and the employer notified USCIS of the termination in January In February 2007, the employer provided Mr. Gupta with airplane tickets to his home country. The bona fide termination of his H-1B employment was completed that month in Mr. Gupta hired counsel and attempted to negotiate back wages, additional relocation expenses, the value of unpaid benefits and accrued interest. See, Gupta, at 2. In May 2008, more than 14 months after his bona fide termination, Mr. Gupta filed a complaint with WHD claiming that he was not paid his required wages through early November The WHD reviewed the complaint but informed Mr. Gupta that: [W]e have determined that there is no reasonable cause to conduct an investigation because you have failed to provide sufficient information to indicate that there is a violation within the 12 months preceding your complaint. Id., at 2-3. Mr. Gupta then provided WHD with additional information between June 2008 and June After filing his second complaint, WHD again rejected it by stating that it was untimely. Id., at 3. Mr. Gupta then filed a request for an ALJ hearing to determine the timeliness of his complaint and the applicability of equitable tolling. He claimed that tolling allowed him to file his complaint in May 2008 for wages owed through November Id. The ALJ found that 20 CFR (a)(2) provides that no hearing or appeal is available after WHD determines that an investigation is not warranted. Id., citing to Watson v. Electronic Data Sys. Corp., ARB Nos , -029, -050 (ARB May 31, 2005) (WHD found no reasonable cause to investigate four complaints, and no administrative recourse to challenge WHD s findings). The ALJ dismissed the complaint stating that no hearing was available and that a WHD determination rendered after its investigation is a prerequisite to a proper request for a hearing under 20 CFR (b)(1). The ALJ found no jurisdictional basis to hold a hearing. Id., at 4. Mr. Gupta filed an appeal to the ARB in October 2010 and then filed another complaint with WHD in WHD declined to take action on the complaint and the same ALJ dismissed his subsequent request for a hearing on the same basis as her prior dismissal. Mr. Gupta appealed that latest dismissal to the ARB and the ARB consolidated the two appeals. Id. In its decision affirming the ALJ s various dismissals, the ARB wrote: The INA and its implementing regulations do not provide that a complainant may request a hearing before an ALJ where the [WHD] determines that there is no reasonable cause to conduct an investigation because you have failed to [show] a violation within the 12 months preceding your complaint. Id., at 7. The ARB concluded that a complainant has no right to an ALJ hearing without WHD first conducting an investigation. Id., at AILA-DC 2012 FALL CONF. 546

239 Juan Carlos Lubray v. El Floridita d/b/a Buenos Ayres Bar & Grill For Timeliness of Request for Hearing, Inaction Shows a Failure to Exercise Due Diligence In Juan Carlos Lubray v. El Floridita d/b/a Buenos Ayres Bar & Grill, ARB No (ARB April 30, 2012), the Complainant failed to establish equitable grounds for failing to timely request a hearing before an ALJ. Mr. Lubray filed a complaint alleging that his H-1B employer in Puerto Rico failed to pay him his required wages due under its LCA. WHD investigated, issued a determination finding that the employer had committed a violation and ordered payment of back wages. Mr. Lubray was dissatisfied with the amount of the back wage determination and requested a hearing before an ALJ. See, Lubray, at 1-3. In a decision issued in July 2010, the ALJ found that the request for a hearing was not timely filed and that principles of equitable tolling did not apply. Mr. Lubray then filed an appeal to ARB, which affirmed the ALJ s decision. Id., at 1-2. WHD s determination awarded Mr. Lubray $4, in back wages and notified the parties that they had to file a request for a hearing within fifteen (15) calendar days after the date of the determination s issuance. Id., at 2. Instead of filing a request for a hearing, Mr. Lubray visited the WHD office and made a verbal objection to the amount of back wages awarded. He then made two requests, sent to WHD, for information on how the back wages were computed. One of these requests specifically requested the information pursuant to the Freedom of Information Act (FOIA). After the fifteen day period had expired, the employer paid the back wage award in full to Mr. Lubray, who cashed the check labeled Final Payment. Id., at 2-3. In March 2010, Mr. Lubray filed another FOIA request, more than fourteen (14) months after the WHD determination was issued. He continued making in-person and written requests to WHD. The WHD office in Philadelphia ultimately told Mr. Lubray that if he was unsatisfied with the WHD determination, he had to request a hearing from the DOL s Office of Administrative Law Judges (OALJ). On May 12, 2010, Mr. Lubray sent a request to OALJ, challenging the WHD s determination dated January 21, The ALJ heard the issue of timeliness and dismissed the request as being untimely. Id., at 5. The ARB agreed with the ALJ that principles of equitable modification should not be applied in Mr. Lubray s case because he was notified in writing of the method and timeframe for requesting a hearing. The ARB emphasized that the party appealing such a denial bears the burden of justifying the application of equitable tolling principles. Id., at 5-6. It also found that Mr. Lubray did not prove that he was unable to timely file his request. Id., at 6. Bishnu S. Baiju v. Fifth Avenue Committee Request by WHD to ETA for a Wage Determination was Proper after Finding that Wage Survey used by an Employer was Insufficient; Employer was Not Required to Pay Higher Wage Determination Made in PERM Application; To Complete a Bona Fide Termination, Employer is Only Required to Offer Payment of Transportation Home, Refusal by Employee is Not Relevant; Notification of Termination to USCIS is Only Required, Proof of Revocation of H-1B Petition or Cancellation of LCA are Not Required for Bona Fide Termination In Bishnu S. Baiju v. Fifth Avenue Committee, ARB No (ARB April 4, 2012), the Complainant was employed as an accountant and paid more than his $45,000 annual salary as listed on the LCA filed with his employer's H-1B petition. This prevailing wage was based on the employer's own survey. He received two cost of living increases leading to a total annual salary of $50,500 at the time of his termination. During his employment, Fifth Avenue 3 AILA-DC 2012 FALL CONF. 547

240 Committee (FAC) filed a PERM application on his behalf and, as part of that process, obtained a prevailing wage rate from the State of New York in the amount of $63,500 per year. See, Baiju, at 1-3. Mr. Baiju repeatedly complained to his employer's representatives that he was not being paid his proper wages, including claims that he should be paid the $63,500 salary as listed in the prevailing wage from his PERM application. Mr. Baiju's protestations escalated to the point where he had a meeting with FAC's Executive Director. During that meeting, he made statements to the effect that he would not perform his assigned duties until he was properly paid. He was notified in writing on February 12, 2008 that his employment was terminated. On March 11, 2008, FAC offered to reimburse Mr. Baiju for the cost of his transportation to his country of origin and also sent written notice to USCIS of his termination. Id., at 3-4. In January 2009, WHD investigated to determine if FAC had complied with the INA in regard to Mr. Baiju's H-1B employment. WHD rejected FAC's source for the prevailing wage it listed on its LCA and submitted a request to DOL's Employment and Training Administration (ETA) to issue an independent prevailing wage. ETA issued a different prevailing wage, and WHD then issued a determination finding that FAC owed back wages to Mr. Baiju in the amount of $ Mr. Baiju disagreed and filed a timely request for a hearing before an ALJ. Id., at 4. After a hearing, the ALJ issued a decision stating, among other rulings, that FAC was not obligated to pay Mr. Baiju the prevailing wage from its PERM application, or $63,500 per year and that WHD's request for a wage determination from ETA was proper. The ALJ also ruled that FAC had accomplished a bona fide termination on March 11, 2008, despite Mr. Baiju's refusal to accept the offered payment for his return transportation. Id., at 5, 8-9. The ARB affirmed the ALJ's decision, finding that despite Mr. Baiju's claims that there was no bona fide termination because he was not presented with proof of the revocation of the H-1B petition by USCIS, that he was not offered the payment for return transportation and that evidence presented to the ALJ regarding USCIS revocation was fraudulent. Id., at 8-9. The ARB reiterated the standard for bona fide termination as found in 20 CFR (c)(7)(ii) and described in Gupta v. Jain Software Consulting, Inc., ARB No , ALJ No LCA-039, slip op. at 3 (ARB Mar. 30, 2007). Id., at 9. The ARB also rejected Mr. Baiju's claim that FAC was obligated to pay a salary of $63,500 because his PERM application and FAC's H-1B petition were both submitted for the same position. After affirming the ALJ's conclusion that FAC's wage survey was insufficient and WHD's request to ETA for a wage determination was proper, the ARB explained that the State of New York wage determination (for the PERM application) bore no relation to the H-1B process. No further consideration of the $63,500 salary was given in the ARB's decision. Id., at 7-8. Conclusion Counsel for Employees and Employers Be Careful Considering that bona fide terminations continue to be disputed by former employees, as demonstrated in the Baiju case above, counsel for employers must emphasize to their clients how important it is to accomplish a thorough and immediate bona fide termination. Likewise, counsel for H-1B workers must be mindful of the deadlines for requesting hearings, filing appeals and other procedural matters while they attempt to negotiate a resolution or build a case for back wages or reimbursements. The ARB has also given clear instructions, including the holding regarding the requirement for posting notice of the filing of LCAs at actual work locations, which all counsel involved with H-1B workers should heed. 4 AILA-DC 2012 FALL CONF. 548

241 AILA-DC 2012 FALL CONF. 549

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249 September 7, 2012 William L. Carlson, Ph.D. Administrator, Office of Foreign Labor Certification Room C-4312 Employment & Training Administration U.S. Department of Labor 200 Constitution Avenue, NW Washington, DC Submitted via RE: Information Collection for Labor Condition Application and Instructions for H-1B, H-1B1, and E- 3 Nonimmigrants; ETA Forms 9035, 9035E, 9035CP; and WHD Nonimmigrant Worker Information Form WH-4, Extension with Revisions 77 Fed. Reg (July 9, 2012) OMB Control Number Dear Dr. Carlson: The American Immigration Lawyers Association (AILA) submits these comments on the above-referenced information collection published at 77 Fed. Reg on July 9, This notice of information collection proposes new changes to ETA Forms 9035, 9035E, 9035CP, and WH-4 and their accompanying instructions. AILA is a voluntary bar association of more than 12,000 attorneys and law professors practicing, researching, and teaching in the field of immigration and nationality law. AILA members regularly advise and represent American companies, U.S. citizens, lawful permanent residents, and foreign nationals in seeking immigration benefits, including lawful admission to the United States. Our mission includes the advancement of the law pertaining to immigration and nationality and the facilitation of justice in the field. We appreciate the opportunity to comment on the proposed form revisions and believe that our members collective expertise provides experience that makes us particularly well-qualified to offer views that will benefit the public and the government. AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 557

250 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 2 Introduction The U.S. Department of Labor (DOL) is proposing extensive changes to the labor condition application (LCA, ETA Form 9035) and related forms (ETA Form 9035E, 9035CP) and instructions. The proposed changes exceed DOL s statutory authority, are contrary to the legislative history of the Immigration Act of 1990 (IMMACT 90), and should instead be promulgated by regulation in accordance with the full notice and comment rulemaking requirements of the Administrative Procedure Act (APA). If adopted, the standard LCA form would expand from its current five pages to nine pages, and the burden on employers in collecting information and completing the form, would increase substantially. In addition, DOL proposes to break with decades of practice by requiring employers to identify the beneficiary on the form itself, and collect and make public a substantial amount of sensitive personal and other information, thereby implicating numerous privacy concerns. The most significant changes in the proposed LCA are that it: Permits up to 10 positions per LCA (previously unlimited); Requires new and extensive information on each beneficiary, including: full name, date of birth, country of birth, country of citizenship, nonimmigrant status, PERM application number (if pending), and a new OFLC H Number; Requires new information on the employer, including: NAICS industry name, year business was established, number of employees in the U.S., gross and net annual income, and country of business headquarters; Requires new information on the work site, including detailed information on third-party/end-client placement; Requires new LCA statements including information on similarly employed U.S. workers, and new questions for H-1B dependent employers and willful violators; and Requires new Declaration of Employer on the form with Yes/No options (previously included in the instructions). The Proposed Changes Require Full Notice and Comment under the Administrative Procedure Act DOL states that as a result of recommendations from the Government Accountability Office (GAO) and the DOL Office of Inspector General (OIG), it seeks to revise the scope of information collected in the context of H-1B, H-1B1 and E-3 applications in order to enhance [DOL s] integrity review for obvious errors, omissions and inaccuracies under 20 CFR (b). 1 However, the proposed changes go far beyond simply revising the scope of information collected and instead represent an inappropriate attempt by DOL to create new substantive rules and to amend existing regulations regarding an employer s LCA obligations Fed. Reg (Jul. 9, 2012). AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 558

251 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 3 Any attempt to change agency practice or procedure that impacts substantive law is a change that must be promulgated through the appropriate notice and comment provisions contemplated by the APA. The circumstances in which the APA permits an agency to implement a rule change without notice and comment are extremely limited. DOL must explain why it has good cause to conclude that notice and comment would be impracticable, unnecessary, or contrary to the public interest. 2 DOL has set forth no compelling public policy reason to abrogate notice and comment and instead attempts to implement comprehensive substantive changes to the LCA process under the guise of a simple form change. The Proposal Directly and Substantially Affects Small Businesses and Is a Major Rule under the Small Business Regulatory Enforcement Fairness Act of 1996 Under the Small Business Regulatory Enforcement Fairness Act of 1996, a major rule is a rule that the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) finds is likely to result in adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign based enterprises in domestic and export markets. 3 Small businesses are recognized as the engine of U.S. economic growth. The Small Business Administration (SBA) reports that small businesses were responsible for the creation of 65 percent of net new jobs over the past 17 years, and that small businesses employ 43 percent of the country s high tech workers (scientists, engineers, computer programmers, and others). 4 Despite their critical importance to our economy, DOL dismisses out of hand the effect that the proposed form revisions will have on small businesses, stating, the burden on small business concerns is minimal. 5 This is simply not correct. As employers of 43 percent of the country s high tech workers, small businesses have been and will continue to be substantial users of the H-1B program. Indeed, USCIS reports that in FY 2010 more than 34,000 H-1B petitions were filed by companies with fewer than 25 employees. 6 Unlike large companies, however, which can spread the cost of implementing a compliance system across multiple LCA filings, small businesses are more likely to employ only a single H-1B worker (often judiciously chosen to fill a key need) and must design and implement compliance procedures to accommodate that particular hire. For this reason, a proposal that would nearly double the length of the LCA, that would require public disclosure of personal information regarding key hires and private financial information, and that would require precise phrasing of the answers 2 5 USC 553(b)(B). 3 Small Business Regulatory Enforcement Fairness Act of (2)(C). 4 See 5 Supporting Statement for Request for OMB Approval under the Paperwork Reduction Act of 1995: , p See AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 559

252 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 4 to a variety of questions to avoid a denial for an obvious inaccuracy, most certainly places a substantial burden on small businesses. Unfortunately, these extra-regulatory burdens may well be enough to force a small business to forego expanding or seeking a business opportunity that would necessitate the hiring of an H-1B, E-3, or H-1B1 worker. The net impact of such a decision includes the elimination of payroll taxes that would otherwise be paid by that employer and a missed opportunity to infuse money into the community as the worker pays for housing, purchases a car, and shops for food, clothing, and entertainment. In addition, less obvious but more severe consequences would present themselves, such as the elimination of additional jobs for U.S. workers that naturally flow from business and community growth. Ironically, in its apparent effort to protect U.S. workers, DOL may manage to achieve the exact opposite by placing undue burdens on small businesses. Given the obvious impacts the proposed LCA changes will have on small businesses, as explained in greater detail below, DOL should withdraw the notice of information collection and resubmit the changes in the form of a proposed rule to OMB for review. DOL Has Failed to Provide a Suitable Explanation of the Need for the Extensive New Data Collection The Paperwork Reduction Act of 1995 requires agencies to provide the reasons the information is being collected and the way such information is to be used. 7 In its supporting statement, DOL includes a chart which purports to provide a reason for each of the proposed form revisions. 8 However, a close reading of these explanations reveals that DOL has failed to justify the imposition of significant new burdens that will be placed on employers as a result of collecting this additional information. DOL states that the name, date of birth, country of birth, visa status, PERM application number, and the new OFLC H Number for each beneficiary is needed to better track the LCA at DOL and DHS. However, DOL neither explains how this additional data improves tracking, nor demonstrates a problem with tracking the current LCA. AILA is not aware, through either information provided by the government or the practical experience of our members, of any LCA tracking problems at DOL or DHS. Indeed, USCIS s Fraud Detection and National Security directorate, which has been conducting H-1B site visits for the past several years, appears to have no difficulty associating an LCA with a particular H-1B worker using its own records. Although DOL states that tracking beneficiary information will also assist the DOL Wage and Hour Division (WHD) in its enforcement activities, WHD already has full regulatory authority to gather such information from employers during an LCA investigation. 7 Paperwork Reduction Act of 1995, 3506(c)(1)(B)(iii)(I) and (II). See also Exec. Order No , requiring an agency to justify any new burdens placed on the public. 8 Supporting Statement for Request for OMB Approval under the Paperwork Reduction Act of 1995: , at p AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 560

253 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 5 DOL s rationale for gathering information on pending PERM applications is similarly vague and troubling. Stating that it will enhance the integrity of the PERM program, it appears that DOL may intend to cross-check information on PERM forms with the LCA information. If that is the case, it is not clear what value that would have, given that an employer may file a PERM application for an employee in a different occupation and at a different salary level than the H-1B occupation. For businesses, the major concern is the delay and damage that will be caused by unwarranted investigations into perceived inconsistencies between the LCA and the PERM application, when such inconsistencies may be completely innocuous and indeed, lawful. DOL s justification for gathering other new data points is even weaker. In explaining why employers must list the company s gross and net annual income and country of headquarters, DOL vaguely states that this information is needed for statistical purposes and integrity measures. However, neither the statute nor the regulations include a mandate for DOL to collect statistics or conduct extensive integrity measures prior to certifying an LCA. DOL s role is clearly and succinctly limited to certifying the LCA unless the form is incomplete or contains obvious inaccuracies. 9 Moreover, as DOL is aware, an employer is required to give a copy of the certified LCA to the beneficiary and must provide public access to the LCA and supporting documentation to anyone who requests it. For private companies, and small businesses in particular, financial information is often closely guarded. A small independently owned business with 10 workers may very legitimately not want its employees to know its net annual income, and certainly would not want its competitors to have easy access to that information. Claiming a need for disclosure of such information for statistical purposes and integrity measures is insufficient under the Paperwork Reduction Act and unwarranted under the applicable statutes and regulations regarding the scope and purpose of the LCA. DOL Has Significantly Underestimated the Data Collection Burdens and Costs to Employers DOL estimates that the proposed revisions would add only 25 minutes to the time needed to complete the LCA. DOL has vastly underestimated the regulatory burden the proposed LCA would create. The Increase in the Volume of Data by Itself Is a Major Administrative Burden DOL begins with the assumption that the existing LCA form takes 35 minutes to complete and compliance with the recordkeeping requirements takes just five minutes. While this assessment is both unsupported and inconsistent with reality, DOL s assessment of the recordkeeping burden associated with the new form is even more outlandish. If the changes are implemented, the form would increase from five pages to nine pages, nearly doubling in length. Moreover, the form requires significantly more information and data, including the number of hours of planned overtime, and detailed information about the beneficiary including an OFLC H Number, an undefined term that appears to be yet another tracking number to be retained with the employee s 9 20 CFR (a)(1). AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 561

254 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 6 personnel data. It is unclear why DOL would require an H number that would follow the H-1B worker from employer to employer, but the requirement that the employer obtain such a number from each prospective H-1B worker prior to filing the LCA adds significant time and effort to the LCA process. It also may result in delays and confusion if the employer or employee unwittingly makes an error with respect to this number. In addition, the form requires new information about the business, such as the NAICS industry name, the year the business was established, the current number of employees in the U.S., gross and net annual income, and the country of the employer s business headquarters. The sheer volume of additional data that must now be gathered is by itself a substantial increase in administrative burdens that will most certainly exceed 25 minutes. The Likelihood of Denial of the LCA Increases Substantially With the Proposed Additional Data Points Several of the new data items pose further problems. For example, under Type of Business, it appears that employers will be required to look up the NAICS business category, rather than simply describing the type of business as they do on Form I-129. If the category is listed incorrectly or is viewed by DOL as inconsistent, will this be considered an obvious inaccuracy warranting denial of the LCA? Listing the number of employees in the U.S. can also be problematic, particularly for large companies where this figure often changes on a daily basis. The gathering and listing of gross and net annual income and other information is a further burden that will slow the entire process. As with the other business data points, it is unclear if DOL will compare this data to other information maintained in DOL records, and whether a perceived inconsistency will result in a denial, both slowing the process and adding an additional paperwork burden of completing and resubmitting a second LCA. Similarly, new data points such as the SOC code and area of intended employment/msa for the OES wage survey, as well as the publisher of a private wage survey and the survey title add to the burden of completing the proposed form. Users of the existing LCA system are painfully aware that even the slightest variation in the name of a private wage survey from the way it is listed in DOL s database causes the LCA to be denied for an obvious inaccuracy. Employers must then complete the entire form again, and wait another seven days for the form to be processed with no assurance that it will not be denied a second time. It is not difficult to imagine LCAs regularly being denied because the name of the publisher is listed incorrectly, or the area of intended employment is phrased incorrectly or has the wrong code. The Proposed Changes Will Virtually Eliminate the Use of Multiple-Slot LCAs Thus Increasing the Administrative and Recordkeeping Burdens As described in more detail below, requiring beneficiary information will have the effect of virtually eliminating the use of multiple-slot LCAs. It is a rare occasion when an employer knows in advance the names of 10 employees who will be placed at a single location. As a result, H-1B employers will be forced to file individual LCAs for each employee and with each LCA come exceptionally important recordkeeping requirements. AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 562

255 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 7 An LCA violation can result in thousands of dollars in penalties and, in severe cases, debarment. Employers must, therefore, employ significant resources to ensure compliance including maintaining records, periodically auditing LCA public access files, and monitoring the timeline following the departure of an H-1B employee for file retention. With the effective elimination of multiple-slot LCAs, the administrative resources required to monitor compliance will increase exponentially, particularly for large users of the H-1B program. Data Requested Regarding End-Clients Adds Additional Burdens and May Violate Contractual Confidentiality Obligations For employers placing an H-1B worker at a third party site, new information is required, including the name of the end-client business. Listing this information may well violate confidentiality agreements between the H-1B employer and the end-client. To comply, an employer will be required to investigate any contractual restrictions and if necessary, obtain consent from the end-client to disclose this information on the LCA. It is not clear whether a change to a different end-client in the same MSA will require a new LCA filing, thus further increasing the amount by which DOL has underestimated the paperwork burden. Additional Burdens to H-1B Dependent Employers are Similarly Underestimated H-1B dependent employers face additional administrative burdens under the proposed form. An H-1B dependent employer will be required to list its total number of employees and number of H-1B employees each time it completes an LCA, even if the employer is clearly H-1B dependent. This requirement directly contravenes 20 CFR (c)(1), which states that a readily apparent H-1B dependent employer would require no calculations to that affect. An H-1B dependent employer would also be required to provide a description of its efforts to recruit U.S. workers, instead of simply maintaining documentation of those efforts in the public access file. As with wage survey information, it is not clear what DOL intends to do with this information or how it intends to evaluate it, nor is it clear whether the answer to this question may trigger an obvious inaccuracy denial. The Estimate of the Value of the Regulatory Burden at $25 per Hour Is Unfounded and Unreasonably Low DOL calculates the regulatory burden associated with the proposed revisions at $25 per hour. DOL routinely utilizes this rate in calculating regulatory burden, but has never justified how it has reached that number. Most importantly, DOL ignores the fact that in completing the LCA, many, if not most employers are represented by legal counsel. The LCA regulations provide for the imposition of very substantial fines and penalties for violations, including potential debarment from utilizing the H-1B and other programs for future job applicants. As such, an H-1B employer must have a thorough understanding of the rules and must ensure that it has procedures in place to achieve full compliance. Implementing and maintaining a strong compliance program cannot be done without AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 563

256 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 8 advice from legal counsel (in-house counsel, external counsel, or both), and the addition of so many additional data points only adds to the importance of legal advice in this process. To assume otherwise ignores reality. At $25 per hour, DOL has vastly underestimated the cost of compliance with the regulatory burdens of this new form. The Proposed Changes Create Significant Additional Burdens on Employers Not Contemplated by DOL In addition to the data collection burdens, the proposed changes will have the effect of further complicating the recruiting and hiring process, and will significantly impact the ability of U.S. employers to compete in a global market and recruit and retain key talent. The Proposed Changes Will Further Complicate the Already Chaotic H-1B Cap Filing Process In its attempt to justify the collection of information on the beneficiary, DOL states, this should cause employers little extra burden because employers generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCAs for more than 10 employees. 10 However, this fails to tell the entire story. In assessing business burdens, DOL neglected to take into account other external factors that H-1B employers must contend with and the way they have adapted their business practices accordingly. The H-1B cap is the clearest example of this problem. Each year, the H-1B cap represents a moving target. In some years, the cap has been reached within the first few days of the filing period, while in other years H-1B numbers have remained available for months. Even when H-1Bs are available for a longer period of time, employers must often rush to file for new hires as the cap approaches. Under the current process, where it knows the position will be filled, an employer may obtain an advance LCA (multiple-slot or single use) which eases the pressure and uncertainty when filing close to the cap. An investment firm, for instance, may know that it will hire five Quantitative Analysts with master s degrees in mathematics, but may not yet have received acceptances of the offer of employment from those candidates. Since the employer knows the planned dates of employment, the position requirements, the work location, the salary range, and the prevailing wage, the employer can take proactive steps by obtaining an LCA for the open positions while it waits for the employment offers to be accepted and/or continues to seek applicants. Under the proposed form, the employer would be unable to proceed since the individual beneficiaries must be identified prior to filing. At best, this unnecessary delay will result in a mad rush to get LCAs filed and approved as soon as the H-1B filing period opens. At worst, the delay will result in employers missing the H-1B cap for critical prospective employees, forcing them to move work opportunities abroad or lose their ability to compete effectively with global competitors. 10 Supporting Statement for Request for OMB Approval under the Paperwork Reduction Act of 1995: , at p AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 564

257 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 9 The Proposed Changes Will Harm the Ability of U.S. Employers to Remain Competitive in a Global Marketplace In the increasingly competitive global marketplace, business opportunities require immediate action. A single day can mean the difference between landing a new customer or contract and watching that new business go to a U.S. or foreign competitor. As a result, U.S. businesses must plan in advance, particularly at key times of the year, to ensure access to the high skilled talent they need to respond to business opportunities. Strategic planning many times includes obtaining a single use or multiple-slot LCA for a position at a location where a job opportunity will soon exist. Obtaining an advance LCA is a legitimate business strategy employed by both traditional companies with employees working at company-owned facilities, and by consulting companies where employees are placed onsite at client locations. Combined with the H-1B portability provisions of the American Competitiveness in the 21 st Century Act (AC21), 11 this practice allows companies to quickly respond to business opportunities by rapidly deploying critical H- 1B workers. By requiring beneficiary information on the LCA, DOL will make it impossible for employers to make reasoned strategic business decisions and maintain their competitive advantage. Instead, with each new opportunity, employers will be required to wait until specific workers are located to submit an LCA for urgently needed and often hard-to-fill positions. While DOL states that the seven day processing time is a relatively quick turnaround, it is the timing and not the total time that presents the problem. The proposed LCA eliminates a process that can be performed concurrently with recruitment or negotiation of a work contract, and replaces it with a process that can only be initiated after these tasks are completed. This unnecessary delay can literally mean the difference between a U.S. employer s success and failure in securing a new contract or introducing a new product. The Proposed Changes Will Harm the Ability of U.S. Employers to Attract and Retain Critical Global Talent The proposed revisions would also directly harm the ability of U.S. employers to attract and retain critical global talent by creating a serious invasion of privacy for H-1B workers. In requiring the collection of the beneficiary s personal information and making it accessible to the public, DOL fails to recognize that the United States is but one of many options for the world s best engineers, scientists, investment analysts, and other professionals. When choosing between U.S. career opportunities and opportunities in other countries, it is not at all a stretch of the imagination to conclude that some of this critical global talent will choose careers in countries with immigration policies that respect their privacy, particularly given the uncertainty of the H-1B cap and the growing problem of lengthy backlogs for permanent resident status. Depriving employers of critically needed global talent by bringing privacy concerns into the process reduces the ability of U.S. employers to compete globally and serves as further encouragement for employers to send work abroad where these additional burdens do not exist. 11 Pub. L. No , 114 Stat. 1251; , 114 Stat (Oct. 17, 2000). AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 565

258 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 10 Moreover, requiring the disclosure of the beneficiary s biographical data is completely at odds with the underlying purpose of the LCA statute and regulations. The purpose of that statute is to protect the wages and working conditions of U.S. workers by preventing the underpayment and mistreatment of H-1B workers. Workplace violence and violent acts against immigrants take place routinely in the United States. Rather than protecting H-1B workers, the proposed LCA changes expose such workers to potential mistreatment and retribution by malicious co-workers and anti-immigrant members of the public. The Proposed Changes Contravene the Area of Intended Employment Definition Set Forth in 20 CFR While the Federal Register notice only describes revisions to the ETA Form 9035 and related forms and instructions, it in fact imposes practical changes that appear to contravene the LCA regulations. Under 20 CFR (a)(2), an employer may place an H-1B worker at a worksite not contemplated at the time the LCA is filed as long as the employer posts notice of the LCA at the new worksite. This, combined with the definition of area of intended employment as an area within normal commuting distance, 12 has long been understood to provide employers with the flexibility to move an H-1B employee to a new location within the same MSA without obtaining a new LCA. This provision is of great importance to consulting companies, information technology companies, and other employers whose employees periodically move from one worksite to another. It is unclear whether this practice will be allowed if the revised form is implemented, now that Section F.2b requires the name of the end-client where the worker will be placed. Faced with this confusion and considering the serious penalties associated with an LCA violation, employers will likely file a new LCA for each location change, even if the change involves moving just a block or two down the street in the same city. Under current USCIS policy, this may also mean that the employer would be required to file an amended H-1B before the employee may work at the new site, thus adding tremendous expense to the process of moving an employee within the same MSA. By essentially changing the regulation with this form revision, DOL is adding yet more unreasonable burdens to businesses without the required justification and without notice. The Collection of the Beneficiary s Biographic Information, End-Client Information, and Employer Financial Information Exceeds the Scope of DOL s Authority Section 212(n) of the Immigration and Nationality Act (INA) sets forth an employer s obligation to file an LCA with DOL prior to filing an H-1B petition. INA 212(t) specifies the information that must be included in the LCA and provides DOL with the authority to investigate an employer s failure to meet a condition specified in the LCA. When the LCA was introduced as an additional element of the H-1B process in the Immigration Act of 1990 (IMMACT 90), it was viewed by Congress as an attestationdriven document that would be promptly adjudicated. IMMACT 90 mandated an efficient CFR AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 566

259 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 11 and speedy certification process to allow the admission of urgently needed H-1B talent while providing appropriate protections to U.S. workers. The regulations at 20 CFR set forth the documentation that is to be kept in the public access file as well as documentation that must otherwise be retained in the event of an audit. The regulations also set forth the LCA information that DOL is required to compile and make public. 13 In recognition of the privacy and related concerns that would be raised by making certain information public, the regulation excludes from disclosure certain proprietary information as well as employee payroll records. Notably, however, a copy of the LCA must be kept in the public access file and therefore, all information contained in the LCA is public. As proposed, the new LCA form would demand an unprecedented level of information from employers including detailed information about the H-1B employee, end-client, and the employer s financial status. The collection of this information exceeds DOL s statutory and regulatory authority and violates the fundamental premise of the attestationbased LCA system. Nowhere does the statute or regulations mention the disclosure of beneficiary information, or information about the end-client or the employer s financial status. Moreover, as an attestation-based system, there is no reason to require employers to provide such nuanced information. The purpose of the public access file is to allow concerned individuals to verify that the employer is not using H-1B labor to disadvantage the U.S. workforce or exploit the H-1B employee. Disclosure of the position title, salary and job location as currently required is sufficient for this purpose. The public access file is not meant to be a receptacle for all information that DOL might require an employer to produce in an investigation. 14 With the inclusion of this new information in the LCA, DOL has seemingly set aside any privacy concerns it demonstrated by excluding proprietary information and payroll records from the public access file. In addition, DOL is expanding the potential basis for complaints beyond what Congress intended and is impermissibly attempting to bypass the regulatory process and usurp congressional authority. The Collection of the Beneficiary s Biographic Information Raises Serious Privacy Concerns In its attempt to justify the collection of substantial personal information about the intended H-1B, E-3, or H-1B1 worker, DOL rather weakly states that it appears to be 13 The employer must disclose the occupational classification, wage rate(s), number of nonimmigrants sought, period(s) of intended employment, and date(s) of need for each employer's application 20 CFR In addition, the beneficiary s name, date of birth, country of birth, and country of citizenship are already collected by DHS on the I-129 Petition for a Nonimmigrant Worker. This data is compiled and made available to the public. See e.g., Yearbook of Immigration Statistics: 2011, Temporary Admissions (Nonimmigrants), available at: See also, DHS Annual Flow Report, Nonimmigrant Admissions to the United States: 2011 (July 2012). AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 567

260 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 12 necessary to prevent the abuse of [the] LCA. 15 No further explanation is provided or examples given of situations in which the LCA process was abused because the specific worker information was not included. This explanation is patently insufficient, particularly when the collection of this information exceeds the scope of DOL s authority and raises deep concerns regarding privacy issues that would require more rather than less justification. The proposed LCA implicates numerous privacy rights of the beneficiary including his or her national origin, date of birth (age), worksite address, and financial and personal security. 16 Specifically, the inclusion of this information on the LCA directly impacts the beneficiary s protected privacy rights under federal law and as established by employment law principles and policies. For purposes of national origin protection, to pass constitutional muster, a law must be specific to the purpose for which it was intended, must be narrowly tailored and, if it implicates the protected interests of a class of people, must achieve a compelling government interest. 17 DOL has not given any reasonable explanation for requiring disclosure of the beneficiary s country of birth or country of citizenship, much less expressed a compelling interest. Additionally, federal law protects certain classes of persons from discrimination based on national origin or citizenship. 18 The DOL s proposal to include the country of birth and country of citizenship on the LCA is likely to result in a significant risk of national original discrimination claims because internal managers and other employees who may have the authority to impact hiring, firing, and make other employment- related decisions will have access to this otherwise private information. According to the Department of Justice Office of Special Counsel, a process that asks applicants to identify their citizenship status may be facially discriminatory in that it creates an unnecessary barrier to potential noncitizen applicants. 19 Moreover, the name of the beneficiary coupled with his or her date of birth is generally classified as protected information for purposes of preventing identity theft. 20 Rather than preventing LCA abuse, disclosure of the beneficiary s personal information (including salary) will put the beneficiary at great risk of financial loss or other harm. Financial loss may include identity theft or fraud by unscrupulous individuals who are able to acquire the information through the public access file. In addition, the disclosure of the employer and worksite location could put the beneficiary at risk of physical harm and hate crimes 15 Supporting Statement for Request for OMB Approval under the Paperwork Reduction Act of 1995: , at p As explained above, a privately-held petitioner/employer also has a strong privacy interest in protecting its financial information. 17 Korematsu v. U.S., 323 U.S. 214 (1944). 18 Pub. L Immigration Control and Reform Act of 1986; Title VII of the Civil Rights Act of 1964 (Pub. L ). 19 Office of Special Counsel Letter to Janet Sun dated August 21, 2012 (citing Eze v. West County Transportation Agency, 10 OCAHO No. 1140, at 3 (2011)), published on AILA InfoNet at Doc. No (posted 8/23/12). 20 See Identify Theft and Assumption Deterrence Act as amended by Pub. L (1998). This law makes it a crime to knowingly transfer or use, without authority, a means of identification of another person with the intent to commit, aid, or abet any unlawful activity. Section 3(d)(3)(A) includes the name and date of birth in the definition of means of identification. AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 568

261 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 13 by individuals with anti-immigrant ideologies. This is not mere speculation. Non-U.S. citizens are routinely victimized by fraudulent actors and criminals. 21 Disclosure of this information in a public access file will make H-1B workers easier to target. The Collection of the Beneficiary s Biographic Information Runs Contrary to State Data Protection and Identity Theft Laws In addition to numerous rules promulgated to by the Securities and Exchange Commission, Federal Communications Commission, and other federal agencies to limit the disclosure of personal information, 46 states plus the District of Columbia and Puerto Rico have enacted stringent laws designed to protect personal information. 22 In many states, professional licensing boards such as the Texas Medical Board have, either voluntarily or through administrative rulemaking, also removed licensees birthdates from their publicly posted materials to guard against identity theft. 23 Most of the state data protection and anti-identity theft laws cover not only customer information but also personal information respecting employees. These laws are not identical, but all restrict public access to personal information including name, date of birth, and social security numbers. Some, including Massachusetts, 24 also require employers to develop specific protocols to protect and prevent unauthorized access to sensitive information. While we acknowledge that DOL is not asking employers to post social security numbers, the combination of a full name and date of birth is also generally protected in that this is often enough information to allow an identity thief to acquire additional personal information about the subject. The required sharing of this information to any member of the public through a public access file is at odds with the employers obligation to maintain the confidentiality of this same information pursuant to protective statutes. The Collection of the Beneficiary s Biographic Information Will Expose the Employer to Tort Liability in Many States 21 For example, AILA recently received several reports from members whose clients had received a call from an individual claiming to be a USCIS officer who was in possession of verified personal information. After asking the client to verify other data, such as an I-94 number or A number, the client was told that there was a penalty to clear up a purported discrepancy. The client was then asked to wire funds via Western Union. This type of scam could easily flourish with the disclosure of detailed beneficiary information under the DOL s proposed form changes. See Warning: A New Telephone Scam, published on AILA InfoNet at Doc. No (posted 7/19/12). 22 See Alaska Stat et seq. (2008); Iowa Code 715C.1 (2008); S.C. Code Ann et seq. (2008); Va. Code (2008); W.Va. Code 46A-2A-101 et seq. (2008); California Constitution, Article 1, Declaration of Rights; Cal. Civil Code , Cal. Penal Code (identity protection and theft codes). Notably, California was the first state to enact an anti-breach law designed to protect the privacy of consumers and employees. Cal. Civil Code , et seq. (SB 1386). Like Texas, California also has an established Office of Privacy Protection. See Mass. Code Regs. 17 et. seq. AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 569

262 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 14 In many states, 25 employers could also face tort liability for making the information available to the public. The tort of publication of private facts allows individuals to sue if anyone, including an employer, publicly discloses private facts about the person. There is an exception for facts that are otherwise publicly available and/or the publication of which is in the public interest. 26 In addition, the publication must be of a kind that would cause an ordinary person to be offended. 27 The definition of private facts includes, inter alia, financial information such as salary. Most of the applicable statutes do not contain a consent exception. We are concerned that the retention of the LCA in the public access file of the LCA under the current proposal would fall within the ambit of this tort. Two cases have considered whether the publication of an employee s salary in conjunction with identifying information such as the employee s name would constitute a tortious publication of private fact. Both concluded that it could. In Health Central v. Commissioner of Insurance, 28 though the court dismissed the case (which was filed by the employer) for lack of standing, it acknowledged that publication of employee names and salaries could form the basis for a tort claim. In Purdy v. Burlington Northern and Santa Fe Railway Company, an unpublished case, the court granted a temporary restraining order to prevent the publication of employee names, social security numbers and salary information. After addressing the unquestionable unlawfulness of publishing employee social security numbers, the court noted that [i]f, for example, [plaintiff] sought to publish the salaries by job description only-without reference to individual names or other identifying information-then the [c]ourt might conclude either that the information was not private or that there was a legitimate public interest to be served in its publication. Coupled with employee names (and social security numbers), however, that information becomes private. 29 Given that the proposed LCA, which must be made publicly available in the employers public access file, contains salary information coupled with identifying information including name, date of birth and birthplace, it would appear to constitute a breach of the prohibition against publication of private facts, thus exposing the employer, or even potentially DOL, to tort liability. Other Issues and Concerns Raised by Specific Sections of the Proposed Form Part B, Items 4 and 4a: Full-Time Position/Number of Hours per Week. In question 4, the employer must specify whether the position is a full-time position. Then in question 4a, the employer is required to state the number of basic and overtime hours per week that the employment entails. Unexplained, however, is how DOL intends to use this information. Does disclosure of this information create an obligation on the part of the employer to abide by these numbers? For instance, if an employer indicates that the position involves 10 overtime hours per week, yet in practice the employment actually entails fewer hours, has the employer obligated itself to paying the nonimmigrant for the stated number of 25 Including Florida, Georgia, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, Ohio, Pennsylvania, Texas, Washington, and the District of Columbia. 26 See e.g. Hitchner v. Cape Publication, Inc., 549 So. 2d 1374, 1377 (Fla. 1989). 27 Id Mich. App. 336, 393 NW 2 nd 625 (1986) WL (D.Minn.) (emphasis added). AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 570

263 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 15 hours? This does not comport with the realities of business needs which can fluctuate on a daily basis. Part B. Item 8.h If PERM Application Is Currently Pending. DOL has not adequately explained the reason for requiring this information beyond the vaguely stated desire to enhance integrity review efforts between the LCA and DOL s PERM program. We note that PERM applications are often filed for future positions and future wages (or by different employers) such that data on a PERM application will often be different from that which is indicated in the LCA. If the data does not match, the LCA may be at risk for denial based on an obvious inaccuracy. Part B, Item 8.i OFLC H Number. The proposed LCA also includes a new data point, OFLC H Number. This number will apparently be generated for the nonimmigrant by the OFLC upon submission of an initial LCA, and must be included on all future LCAs filed on behalf of the employee. It is easy to envision numerous data collection and tracking problems associated with this new number. Prospective employees may have been previously issued an H number but were never informed by their prior employer. If the new employer files an LCA without the H number, a second H number will likely be generated. In addition, during the transition period, it will be extremely difficult for employers to know for sure whether or not a prospective employee has been issued an H number. Moreover, an H number that a foreign worker is required to carry with them from employer to employer is dehumanizing and, coupled with the disclosure of detailed personal information about the beneficiary, will undoubtedly have a chilling effect on the H-1B program as a whole. Without a sound explanation of the need for this new tracking device, backed up by concrete data to support the stated need, we strongly urge DOL to abandon its efforts to implement this misguided plan. Part C, Item 17 Employer s Annual Income. As discussed above, private companies may have legitimate reasons for keeping this information private. Small companies justifiably may not want to disclose annual income to their employees and competition. Part C, Item 18 Country of Employer s Business Headquarters. The country where an employer s business headquarters are based does not have any relevance to the certification or enforcement of the LCA. More specifically, the attestations contained in the LCA must be made by a U.S. employer, and aside from collecting information to incite individuals or organizations with some sort of protectionist agenda, it is unclear why DOL feels compelled to add this new data field to the LCA. Distinguishing employers based on the country of their business headquarters seems to strike the tone that our country does not welcome foreignbased businesses or afford them a level playing field. Should DOL insist on including this data field, it should be optional. AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 571

264 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 16 Part F, Items 2a and 2b Worksite and End Client Information. DOL states that it is collecting new information on the worksite to enable [the] employer to demonstrate regulatory compliance regarding changes in worksite. Here we reiterate our concern that the proposed LCA changes contravene 20 CFR (a)(2) which permits an employer to place an H-1B worker at a worksite not contemplated at the time the LCA is filed as long as the employer posts notice of the LCA at the new worksite. Part F. Items Prevailing Wage Source Information. DOL indicates that this portion of the new LCA [r]equests more detailed information about the prevailing wage to enable employer to demonstrate regulatory compliance. This, however, flies in the face of Congress desire that the LCA function as an attestation-based document. Congress never envisioned the LCA as a document, that itself requires the employer to demonstrate regulatory compliance. Part G. Item 2 and Item 3 Similarly Employed U.S. Workers. DOL failed to provide any explanation for the addition of two new questions regarding similarly employed U.S. workers. There is no obligation for employers to examine their workforce to determine if there are similarly employed U.S. workers. Employers are only required to provide the same wages and working conditions for all similarly employed individuals. Part H H-1B Dependent Questions. DOL states that it has added new questions for H-1B-dependent employers to ensure their compliance with statutory requirements. However, it is unclear how asking the employer for an approximate number of H-1B workers and an approximate number of the total U.S. workforce helps achieve that goal. As noted in the instructions, 20 CFR provides detailed guidance as to what constitutes an H-1B dependent employer. It requires the employer to determine the number of full-time equivalent employees in the U.S., not just a rough approximation of the total workforce. Part H, Subsection 1, Item 6b Basis for Exemption of Nonimmigrant Workers. It is unclear why DOL needs to collect this information, as any H-1B dependent employer or willful violator who files an LCA for exempt workers bears the burden of establishing exemption in the course of an investigation. Providing this information at this juncture serves no purpose as to the integrity review conducted by DOL since it does not have, at the certification stage, any information to determine whether an employer s statements are obviously inaccurate. Conclusion In summary, despite the many additional burdens the proposed LCA places on businesses, DOL has failed to provide a legitimate explanation for this extensive form revision. The need to clarify certain elements of the information collection and enhance the integrity of the labor attestation process is insufficient. Moreover, absent any data to indicate any substantial abuse under the existing form or an explanation as to why the AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 572

265 Information Collection: Labor Condition Application and Related Forms September 7, 2012 Page 17 current LCA is insufficient from an enforcement perspective, the justification of a need to prevent the abuse of [the] LCA, and to effectively ensure compliance with the employer s obligations contained in the LCA 30 is also deficient. The tenor and tone of the proposed changes convey to the public the impression that all employers that hire H- 1B, E-3, and H-1B1 workers are in some way abusing the legal system, when in fact the reality is that employers often hire these workers because they have a unique or special set of skills unavailable to the employer through the American workforce. The creation of tremendous administrative burdens through the proposed LCA revisions, which in several instances change the H-1B regulations, is simply not justified. The proposed form revision should be withdrawn. We appreciate the opportunity to comment on the proposed LCA changes and instructions and look forward to a continuing dialogue with DOL on this important matter. Sincerely, THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION 30 Supporting Statement for Request for OMB Approval under the Paperwork Reduction Act of 1995: , at p. 2. AILA InfoNet Doc. No (Posted 09/07/12) AILA-DC 2012 FALL CONF. 573

266 RANDEL K. JOHNSON SENIOR VICE PRESIDENT LABOR, IMMIGRATION, & EMPLOYEE BENEFITS CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA 1615 H STREET, N.W. WASHINGTON, D.C AMY M. NICE EXECUTIVE DIRECTOR IMMIGRATION POLICY September 7, 2012 VIA ELECTRONIC FILING ([email protected]) William L. Carlson, PhD Administrator, Office of Foreign Labor Certification Room C-4312 Employment and Training Administration U.S. Department of Labor 200 Constitution Avenue, NW Washington, DC Re: Form ETA 9035, Labor Condition Application for Nonimmigrant Workers 77 Fed. Reg (July 9, 2012) OMB Control Number Information Collection Under Review Dear Dr. Carlson: We are writing in response to the Department of Labor s (hereafter the Department or DOL ) request for comment concerning its proposal to revise the Form ETA 9035, the Labor Condition Application form (hereafter sometimes referred to as either the LCA or the ETA 9035 ). The LCA is required for any employer intending to hire an H-1B specialty occupation worker. 1 Although the agency requested and obtained authority earlier in 2012 to reauthorize the LCA form for a three year validity period without any changes whatsoever, the Department is now proposing dramatic changes to the burdens imposed upon employers in attesting to the labor conditions underlying H-1B sponsorship. The U.S. Chamber of Commerce ( Chamber ) is the world s largest business federation. Members of the Chamber transact business throughout the United States, in every state and geographic region in the country. The Chamber represents 300,000 direct members and also represents the interests of more than three million companies and trade and professional organizations of every size, in every industry sector, and from every state, through our federation of state and local chambers. 1 The H-1B category is a nonimmigrant visa classification for workers offered jobs in the United States that require the knowledge and expertise of the type typically obtained through completion of a university degree. The LCA is an attestation-based labor market protection mechanism, enforced by a public access file each employer is required to create, a public list maintained by DOL, and agency investigations. DOL has authority to investigate LCA compliance, and, in addition, U.S. Citizenship and Immigration Services conducts H-1B site visits through its Fraud Detection and National Security (FDNS) directorate FDNS site visits also include a review of LCA compliance. AILA-DC 2012 FALL CONF. 574

267 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 2 of 19 Overview The Chamber opposes the proposed extraordinary expansion of data collection from the nation s employers that sponsor professional workers on H-1B visas. The new, expanded data requests and employer attestations: Are inconsistent with current regulations, Are contradictory to the statutory purpose of the LCA, Without regard to the burdens that will be imposed on H-1B employers and especially small businesses, and Without justification or explanation as to what specific problem the agency is attempting to solve or how the proposed additional data will assist in resolving those problems. First and foremost, the Department s revised form includes a mandate to collect personally identifying information of our members employees, where such information must be made public under the clear and uncontroverted terms of the governing federal statute. Interested member companies were unanimous in their strong and committed opposition to the Department s proposal in this regard, which appears to place employers in violation of: The federal Privacy Act, Many state laws passed in the last decade to protect employee data, The policies of many companies regarding the protection of employee privacy, as well as The Department s own Guidance on the Handling and Protection of Personally Identifiable Information (TEGL 39-11). 2 In addition to our privacy concerns, we also object to the proposed new ETA 9035 because: We believe that the proposed new connection between a named employee and the occupational attestations on wages, notice, strike, and terms of employment is not contemplated by the system Congress established 20 years ago in creating an attestation-based labor market protection mechanism for H-1B sponsorship. Furthermore, the Department s revised form imposes requirements inconsistent with the Department s current policies announced after notice and comment 2 And in some situations, employers might also be in violation of the European Union Directive on the Processing and Movement of Personal Data (Directive 95/46/EC) ce/dir _part1_en.pdf which would seem to apply if a U.S. parent company hires an H-1B employee sent to the U.S. by a subsidiary corporation registered in Europe and the employee is a citizen of a European nation. AILA-DC 2012 FALL CONF. 575

268 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 3 of 19 rulemaking, despite the fact that a federal agency cannot change its substantive regulations through form changes. The revised form proposed by DOL also includes requests for information that employers consider proprietary as well as information that is difficult to assemble and not required for the agency to do its job. Lastly, we find the Department s calculation of the burden imposed on respondent employers filing the LCAs to be erroneous and misleading. For each of these reasons, and as we explain in more detail below, the Department should reconsider its proposed revisions to the LCA form, withdraw the proposed collection of additional data, and proceed through APA notice and comment rulemaking if it wishes to consider a broad expansion of the type of data collected on the Labor Condition Application. I. Proposed Form Requires Employee Data Inconsistent With Privacy Protections The Immigration and Nationality Act, at 212(n), 8 USC 1182(n), 3 requires any employer filing a Labor Condition Application to create a public access file with a copy of the ETA 9035 and supporting documentation verifying the employer s compliance with the four occupational attestation elements: wages, terms, strike, notice. INA 212(n) provides The employershallmakeavailableforpublicexamination, within one working day after the date on which an application under this paragraph is filed, at the employer s principal place of business or worksite, a copy of each such application (and such accompanying documents as are necessary). (Text codified after 212(n)(1)(G)(ii), emphasis added.) The statute also requires that DOL maintain a publicly available list off the wage rate, number of H-1B workers sought, period of intended employment, and date for every LCA. Currently, the list is provided online, accessible through DOL s website. 4 DOL explains in its Supporting Statement for Request for OMB Approval that the Department is contemplating creating an LCA registry to allow all the data [DOL] collect[s] to be made available online and 3 Federal immigration law is codified in the Immigration and Nationality Act, Title 8 of the United States Code. References to the Immigration and Nationality Act hereafter are abbreviated by referring to the INA and section numbers in the Act, instead of the United States Code. 4 In the years immediately following enactment of the LCA requirement in 1990, the list was available only at DOL s headquarters and later on microfiche. AILA-DC 2012 FALL CONF. 576

269 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 4 of 19 in downloadable formats. 5 The Department states that any such expanded LCA registry will comply with any requirements to protect information. 6 In short, the entire Labor Condition Application form, without exception and without redaction, is required by statute to be publicly available for public review. Any member of the public, to include a representative of a competitor business, any employee of the petitioning employer, or a reporter can request to see an employer s public access file. In addition, the Department currently makes certain information on the LCA form available on its website and is contemplating creation of a registry making available on the internet all of the LCA information it collects (although the agency promises to take steps to protect private information and data otherwise protected by law). It is invasive for the Department of Labor to then suggest that an employer should include on the LCA form each H-1B employee s name, date of birth, country of birth, country of citizenship, and U.S. immigration status 7 along with the application number for an Application for Permanent Employment Certification, if applicable, and H tracking number, if issued. The LCA form is a public record and employers take seriously their obligation to protect the personally identifying information (PII) of their employees. While there is no question that the government is indeed entitled to know PII regarding H-1B workers, businesses oppose creating public access to that information. The government already has access to each H-1B employee s name, date of birth, country of birth, country of citizenship, and U.S. immigration status, as all of this data, along with other PII, is required for each and every I-129 Petition for Nonimmigrant Worker filed with U.S. Citizenship and Immigration Services (USCIS). This information is protected by the Privacy Act, and USCIS is careful not to share it except with authorized representatives duly filing a Form G-28 Notice of Representation. Many employers have their own internal company policies that would bar them from sharing the PII identified on the proposed form. These policies are part of the trend in the last decade to afford special protection for PII. Companies, of course, use employees personal information for many reasons, including benefit plan record keeping, applicant evaluation, and a variety of other human resources functions. Employers now frequently have enterprise-level information management systems which has lead to an explosion of PII being shared regularly 5 Supporting Statement, p. 20, July DOL s Supporting Statement for Request for OMB Approval (made available upon request following the Federal Register notice on July 9, 2012) will be referred to as Supporting Statement. 6 The Department says it will protect any personally identifiable information as well as any governing legal constraints such as the Privacy Act, the Trade Secrets Act and the Confidential Information Protection and Statistical Efficiency Act. Supporting Statement, p. 20, July Section B, question 8(a)-(i). DOL s proposed form (made available upon request following the Federal Register notice on July 9, 2012) will be referred to by Section and question. AILA-DC 2012 FALL CONF. 577

270 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 5 of 19 within an employer organization. Moreover, many employers outsource certain human resources functions, like benefits administration, further expanding the proliferation of employee PII being shared. For all these reasons, most of our members have policies governing the protection of employee PII. Companies with such policies might not be able to provide the employee s name, date of birth, country of birth, country of citizenship, and U.S. immigration status on the LCA because of the conflict with these policies, given that the PII provided on the LCA form will, by definition, be available to the public through the public access file, and will therefore breach these internal policies. Moreover, in the last decade there has been a movement at the state level to pass laws protecting individuals from identity-theft. Many states require state agencies, employers, or businesses to protect the data from state residents, employees, and customers, respectively. Most states now have some sort of data privacy laws on the books. Upon reviewing the Department s proposed form revision, the Chamber conducted a cursory review of state laws protecting employee PII in states where some of our larger members do business and sponsor H-1B workers. The Chamber learned the following: First, several states have enacted laws that generally require any person or entity (including employers) that interacts with personally identifying information to take steps to protect such information. States that have enacted these types of laws include: Arkansas (Ark. Code Ann (b), enacted 2005), California (Cal. Civ. Code , enacted 2004), Colorado (C.R.S , enacted 2011), Maryland (Md. Commercial Code Ann , enacted 2007), Massachusetts (201 CMR 17.03, enacted 2010), Michigan (MCLS b, enacted 2004), Nevada (Nev. Rev. Stat. Ann. 603A.210, enacted 2010), North Carolina (N.C. Gen. Stat , enacted 2005), and Virginia (Va. Code Ann , enacted 2005). Secondly, some states have specifically acted to target employers and directly prohibited them from making their employees personally identifying information publicly available. These restrictions would bar an employer doing business in these states from providing the PII identified at Section B, question 8(a)-(i) on the proposed revised form These states have policies that require employers to safeguard employees information or prohibit a business from communicating an employee s personal information to the general public: AILA-DC 2012 FALL CONF. 578

271 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 6 of 19 Connecticut (Conn. Gen. Stat , enacted 2009), New York (NY CLS Labor 203-d, enacted 2009), and Washington (Executive Order 00-03, enacted 2000). The Department s Employment and Training Administration, just prior to publishing the proposed new LCA form, issued a Training and Employment Guidance Letter (TEGL) on handling and protecting PII (dated June 28, 2012). 8 The Department would not appear to be complying with this TEGL as to the H-1B employee information that would by law be part of the statutorily mandated public access file. Connecting a named individual to the LCA violates the need to protect all employees personally identifying information and thus cannot be included in the Department s LCA form revision. II. Proposed Form Ties a Labor Condition Application to a Named Individual Without Statutory Authorization INA 212(n), 9 prohibits admission of an alien in H-1B status unless the employer has filed an application with DOL making certain attestations designed to protect the domestic labor market and avoid abuse of H-1B workers. The attestations are specifically identified by Congress and relate solely to four occupation-related issues which may be summarized as follows (although there are some exceptions): 1. Wages. The employer must attest that it is paying the greater of actual wages paid internally to its own similarly situated staff in the occupation or the prevailing wages in the Metropolitan Statistical Area as determined by DOL or alternative legitimate source. 2. Terms. The employer must attest that it is providing the same terms and conditions of employment including benefits to both U.S. workers and H-1B workers. 3. No strike. The employer must attest that it does not have a strike or lockout in the occupation. 4. Notice. The employer must attest that it has provided notice of the filing of a Labor Condition Application to its own employees who are similarly situated in the same occupation, and that it will provide the H-1B worker a copy of the certified LCA itself on or before the H-1B worker s first day. 8 Guidance on the Handling and Protection of Personally Identifiable Information, TEGL INA 212(n) was added by the Immigration Act of 1990 and attached labor market protections to the H-1B category. AILA-DC 2012 FALL CONF. 579

272 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 7 of 19 Nowhere does INA 212(n) mandate that a Labor Condition Application name the H-1B worker or suggest that an employer is or should be providing an attestation concerning a named individual s employment. In fact, the system Congress envisioned in the Immigration Act of 1990 required employers for the first time to be required to assemble data, available for review by the federal government or the public, concerningoccupational wages, terms, strike conditions, and notice. 10 This attestation-based system meant that any H-1B employer would be required to assemble documentation to be shared with the public verifying its compliance with the four LCA elements, and DOL was given authority to investigate and audit H-1B employers to ensure compliance. Connecting a Labor Condition Application to a named employee beneficiary is not contemplated by the INA and thus cannot be included in the Department s LCA form revision. III. Proposed Form Creates New Substantive Obligations Inconsistent with the Current Regulations Governing the Labor Condition Application The proposed changes to the information DOL collects on the LCA form create substantive new requirements in several important ways. These requirements relate to issues currently detailed in and governed by the Department s LCA regulations. 11 The agency appears to be seeking to amend the LCA regulations through the vehicle of a form revision. No executive agency has authority to change the substantive obligations of the regulated community without a full rulemaking in accordance with the Administrative Procedure Act (APA). Among the new substantive changes created by the proposed form revision are changes to the regulations governing movement within a Metropolitan Statistical Area, recruitment documentation, and the employer declaration. The following suggested form changes are unanticipated by the current regulatory text: 10 See e.g. INA 212(n)(1)(D) which establishes that an employer is identifying thenumberoffuture workers sought in theoccupational classification, not that an employer is identifying a specific named individual who is being sponsored. In discussing the provisions on domestic labor market tests and attestations that later were passed as part of the Immigration Act of 1990, the House Judiciary Committee report identified the elements of the labor market attestation for H-1B workers. The Committee explained that for H-1B specialty occupation workers the attestation would focus on wages and working conditions in the occupation, whether there was a strike or lockout in the employment for which foreign workers are sought, and notice to the employer s workers in the occupation. H. Rep , House Committee on the Judiciary Report (9/19/90), at No mention is made of an interest by Congress in identifying the sponsored H-1B specialty occupation worker or tying the attestation to named worker. A long standing principle of statutory interpretation is that when Congress lists statutory items, those that were not included were excluded intentionally. 11 Part 655 of Title 20 of the Code of Federal Regulations. AILA-DC 2012 FALL CONF. 580

273 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 8 of 19 Movement within MSA Current regulations 12 establish that employers have the flexibility of moving an H-1B employee to a new location with the same Metropolitan Statistical Area (MSA) without obtaining a new LCA. That this is the Department s well-established policy is confirmed explicitly in the preamble to the final rule published December 1994: The Department recognizes that it could require an employer to take two steps before placing H-1B nonimmigrants at a new worksite within the same area of intended employment: post a notice and file a new LCA. However, such a dual requirement appears to the Department to be burdensome. The protections intended by Congress can be afforded by having a notice posted by the employer at each new worksite within the same area of intended employment at the time the H-1B nonimmigrants are sent there to work,withouttheemployerbeingrequired tofilenewlcas. The Final Rule, therefore, imposes alessburdensomebut equallyworker-protectivestandard, by providing that the employer shall provide such worksite notices on the first day of work by an H-1B nonimmigrant at that worksite which will remain posted for at least ten days. 59 Fed. Reg (December 20, 1994). (Emphasis added.) Contrary to the Department s current regulations, the proposed form 13 envisions a system where any employer placing individuals at an end-client location may not move individual H-1B employees within an MSA to locations not identified on the initial LCA associated with those individual employees. The decision by DOL in the development of the 1994 rule governing placements within the MSA reflects the agency s judgment that requiring a new LCA would be unnecessarily burdensome when an employer is moving professional H-1B workers within the same MSA. The Department has no authority to change this regulatory policy without conducting notice and comment rulemaking. Any firm providing consulting services will, by practical necessity, be providing some services at end-client locations, and will be impacted by the change. There are many careful and responsible consulting firms with end-client users who will be restricted in their ability to move H-1B workers, in direct contradiction to current regulatory provisions. Importantly, the companies impacted by this aspect of the form revision are not only firms whose primary business is the provision of strategic, advisory, or professional services. In early 2012, the Chamber conducted an internal survey of its member companies regarding the hiring of key, high skilled professionals. Approximately 15% of respondents were companies whose principal business was providing either strategic, advisory, or professional services (to include various types of engineering, management consulting, and information technology services). Interestingly, though, another 8% of the companies in the survey complement their principal CFR (area of intended employment) and 20 CFR (a)(2) (movement of H-1B worker upon posting of LCA). 13 See Section F, especially questions 1, 2 and 5. AILA-DC 2012 FALL CONF. 581

274 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 9 of 19 business with the provision of consulting services at end-client locations. This reflects a growing trend in the economy where companies, in sectors as diverse as publishing, specialized manufacturing, and consumer goods, seek to expand market share by converting their industry capabilities into new opportunities to provide expertise directly to their existing customers and clients. When considering revisions to agency forms, as opposed to agency regulations, a smaller segment of the regulated community responds and focuses on proposed changes because form revisions should not impose new, substantive obligations of the type typically imposed through regulation. Not only is the Department s proposal an abrogation of rulemaking requirements, but in pursuing this approach the Department was deprived of the opportunity to learn of the concerns of these diversified H-1B employers impacted by the proposed elimination of moving H-1B workers within MSAs. Recruitment documentation Current regulations 14 establish special recruitment obligations for H-1B dependent employers. However, the Department does not require any employer to document recruitment results in the public access file or provide all documentation related to recruitment methods in the public access file. The regulatory obligation for H-1B dependent employers (as well as for employers found to have been willful violators) is to take good faith steps to recruit U.S. workers in accordance with industry standards (and offer wages at least as great as those offered to H-1B workers) prior to filing any LCA or any petition or request for extension of status supported by the LCA. The proposed form 15 contradicts the current regulatory language governing the recruitment requirement for H-1B dependent employers in at least three specific ways: 1. Current regulations do not require H-1B dependent employers to document the legitimate business reasons why any U.S. applicant was rejected for the position. Instead, an H-1B dependent employer is required under current rules 16 to retain any documentation it receives or preparesinthenormalcourse of business regarding the treatment of applicants. In fact, the current regulations explicitly state that to comply with this requirement, the employer is not required to create any documentation it would not otherwise create. 17 However, the proposed form requires an employer to attest, and document, that the recruitment methods used did not result in finding an equally or better qualified U.S. worker, 18 far beyond CFR (recruitment of US workers obligation that applies to H-1B dependent employers and willful violators). 15 See Section H, questions 6d and CFR (i)(2). 17 Id. Compare with proposed form Section H, question 6d. 18 Section H, question 6d. AILA-DC 2012 FALL CONF. 582

275 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 10 of 19 the type of documentation most employers typically assemble in the normal course of recruiting for a position. 2. In addition, current regulations do not require H-1B dependent employers to share publicly the documentation they maintain on the application process. Instead, current rules mandate that such documentation be made available to DOL and only in the event of an enforcement action. 19 However, the proposed form appears to suggest that an employer must have documentation available publicly that supports its attestation regarding applicant evaluation Lastly, the current regulations specify that the public access file only needs to summarize the principal recruitment methods and that a memo can be sufficient to satisfy the requirement. 21 Whereas the current rule focuses on pertinent documents that summarize the principal recruitment methods, the proposed form requires the employer to attest that alldocumentationrelatedto Section H including recruiting methods will be made available in the employer s public access file (emphasis added). 22 These departures from current regulations do not represent simple changes in business practices and instead suggest that employers treat internal practices (recruiting methods and applicant evaluation) as public records. While the government may have access to documentation on certain parts of these internal practices as part of an audit or investigation, it is quite different to mandate that employers publicly document all parts of these internal practices. Should DOL be interested in changing its regulations to establish such a mandate, the agency would have to engage in APA notice and comment rulemaking. Employer declaration The proposed Declaration of Employer on the revised form 23 creates personal, individual obligations for employer representatives signing the LCA instead of obligations for the attesting employer. The Chamber does not believe DOL has authority under INA 212(n) to impose such personal attestation obligations. In addition, the revised employer declaration appears to eliminate the possibility that a third party can sign the LCA even if in possession of contractual authority to do so. Some employers complete legal processes to have third parties, such as outside counsel, complete and sign LCAs. By including new individual attestations, the Department would abolish this practice. While there may good reasons for DOL to do so, it has provided no justification for its recasting of the Declaration of Employer as individual attestation elements by the signatory CFR (i)(3). Compare with proposed form Section H, question 6d. 20 Section H, question 6d and Supporting Statement, p. 16 (July 2012) CFR (i)(4). 22 Id. and proposed form Section H, question See Section J AILA-DC 2012 FALL CONF. 583

276 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 11 of 19 Moreover, three parts of the newly constructed Declaration of Employer on the proposed revised form 24 are inconsistent with current regulations. The Department cannot amend its regulations through a form revision. Thus, the following three Declarations require a regulatory change before they could be implemented: 1. There is nothing in DOL regulations or the INA that authorizes the Department to investigate or enforce employer compliance with the definition of specialty occupation. In fact, ensuring compliance with this definition is within the jurisdiction of U.S. Citizenship and Immigration Services (USCIS), 25 and is one of the key components of the I-129 Petition for Nonimmigrant Worker process, as detailed extensively by USCIS s regulations. 26 Thus, the declaration at Section J, question 2 must be dropped. 2. There is nothing in DOL regulations that require an employer to provide a paper, hardcopy of the LCA to the sponsored H-1B worker. Instead, the Department s regulations specify that the employer must provide the H-1B worker a copy of the LCA. 27 Many employers provide this copy electronically. Since the declaration is inconsistent with current policy, the declaration at Section J, question 3 must be dropped from the revised form. 3. There is nothing mentioned anywhere in DOL s LCA regulations about an employer obligation to notify sponsored H-1B workers that there is no DOL filing fee for an LCA. Thus, the declaration at Section J, question 4 must be dropped. The inconsistencies with current regulatory policy governing movement within an MSA, recruitment documentation, and the employer declaration highlight why a form revision is not the appropriate vehicle for the Department to use in order to move forward its new policy objectives. The current LCA regulations were promulgated after notice and comment rulemaking, including an analysis of the impact to small business and the economic impact to those filing LCAs as well as review and consideration of, and public response to, the concerns of any interested commenter. 28 DOL cannot bypass these important protections of the Administrative Procedure Act by proposing substantive changes to existing regulations through a form revision. 24 See Section J, questions 2, 3, and See 214(a) of the INA, 8 USC 1184(a), which provides that The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe. (Authority now delegated to the Secretary of Homeland Security.) 26 8 CFR 214.2(h)(4)(i)-(viii) CFR (a)(2). 28 It may be worth reminding the Department that the current regulations were developed, in part, following a lawsuit by the National Association of Manufacturers to ensure DOL complied with the APA. AILA-DC 2012 FALL CONF. 584

277 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 12 of 19 IV. Proposed Form Collects Data Not Required for the Agency to Fulfill its Obligations, Including Information that Employers Treat as Proprietary One of the fundamental protections of the Paperwork Reduction Act (PRA) is to ensure the executive branch develops forms that collect only the information required for the agency to do its job and collect such information in the most uncomplicated way possible. Based on the feedback we have received from both small and large businesses in a number of sectors, it appears the Department has not complied with this PRA requirement. In direct contradiction to this PRA directive, several aspects of the proposed form revision require information with no apparent connection to DOL s role in the LCA process. While DOL might find the data points useful in a fishing expedition to identify employers it wants to investigate or to manufacture technical errors in form completion, this is not a sufficient basis under the PRA to collect data. In at least five instances, the type of information employers are asked to provide on the revised form is not required for the agency to fulfill its obligations, and in two cases the information is considered proprietary by some employers: 1. Employers are asked to pick a single type of worksite for the assigned H-1B worker(s). 29 We have been advised by employers in a variety of industries that in the 21 st century economy it is typical for an employee to work from the employer s business premises, work from the employee s private residence, 30 and work on other business premises (of a client or joint venture partner). Some employers would find it difficult, if not impossible, to identify even the primary type of worksite as the division between type of worksite might be evenly split. Answering the question regarding a single type of worksite will be difficult without further guidance from the Department, and no explanation is provided as to how the type of worksite might be related to the Department s review of LCA completeness or its investigation or audit of any particular employer s LCA compliance. 2. Employers are asked to identify both their gross and net income. 31 Most small businesses and many large private corporations do not share gross and net income figures publicly. As DOL is well aware, anything on the LCA form is available in a public access file and thus can be obtainable by competitors or others. Income figures are the sort of confidential commercial or financial information legitimately held closely by private entities. DOL provides no explanation as to how the income figures might be related to the Department s review of LCA completeness or its investigation or audit of any particular employer s LCA compliance. 29 Section F, question It appears the DOL is asking employers who have an H-1B worker telecommuting from home to identify the employee s residential address. As discussed, supra, at p. 3-5, businesses oppose providing such personally identifying information. 31 Section C, question 16 and 17. AILA-DC 2012 FALL CONF. 585

278 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 13 of Employers that provide services at end-client sites are asked to identify the name of the client. 32 Client names are commonly held in confidence by businesses, as valuable commercial or financial information. There is no need for companies to provide this type of business intelligence as a matter of public record. Again, any data on the LCA is available to the public and accessible by competitors and others. To have this information made public is unacceptable, and adds nothing to the labor market protections offered by the LCA given that current regulations and the current LCA form already require the employer provide the address where services will be provided (without identifying the client name). In addition, many employers that provide services at end-client sites have agreements that presently contain contractual obligations to keep the existence of the consulting services agreement private. DOL provides no explanation as to how client names might be related to the Department s review for LCA completeness or its investigation or audit of any particular employer s LCA compliance. 4. Employers are asked to identify the country of the employer s business headquarters. 33 DOL provides no explanation as to how a headquarters country listing might be related to the Department s review of LCA completeness or its investigation or audit of any particular employer s LCA compliance. 5. Employers are asked to provide a case number for an Application for Permanent Employment Certification (PERM request) if an application is pending. 34 Given that a PERM request is based on a future offer of employment, which for many beneficiaries (depending on country of birth and backlogs in the employment-based preference categories) might be a job to be filled many years in to the future, there would often be an interest and concern to ensure a PERM request was not confused with the Labor Condition Application in any way. DOL provides no explanation as to how data which DOL will cross-reference once it obtains the PERM case number could be related to the Department s review of LCA completeness or its investigation or audit of any particular employer s LCA compliance. When our members expressed concern about the above aspects of the proposed revised form, the absence of any justification supporting the necessity of collecting this information further increased concern. The utter lack of specificity in the Department s statements around the form makes clear that the PRA requirements have not been satisfied in at least the five above circumstances because there is no need for employers to provide the information that DOL would like to collect. 32 Section B, question 2b. 33 Section C, question Section B, question 8. AILA-DC 2012 FALL CONF. 586

279 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 14 of 19 V. Proposed Form Requires Burdensome Collection of Information Far Beyond the Agency s Burden Estimates The Department s burden calculation in its Supporting Statement for Request for OMB Approval is flawed in at least three ways: Burden underestimated based on comparable increase in DOL staff time The Department evidently anticipates spending dramatically more time for upfront processing, increasing the staff time required by a factor of The Office of Foreign Labor Certification expects staff time to increase from annually adjudicating 1,570 ETA 9035 applications annually that are not complete at the time of submission, taking about 392 hours annually, to an annual obligation under the proposed form to adjudicate about 40,000 ETA 9035 applications, taking about 10,000 hours annually. 36 It is illogical to presume there is not a corresponding increase of time burden on the part of the employers completing the ETA 9035 for filing. If the Department expects a large uptick in the number of incomplete LCA forms, this means that employers should be expected to find the new form difficult to properly complete. Clearly DOL expects significant increased time, and confusion, for petitioning employers to ensure their LCAs are complete, but the time burden estimate for respondent employers does not reflect this. Burden miscalculated increase in responses and other errors increases costs The Department identifies the total number of responses as 1,129, However, the agency s total reporting and recordkeeping time burden calculations rely on the number of 340,000 responses per year. Using the 1,129,000 number would imply a total reporting and recordkeeping time burden (1.3 hours per LCA x 1,129,000) of 1,467,700 hours per year and (at the Department s $25 per hour cost) and annual information collection request cost burden on private employers of about $36.7 million annually. The Supporting Statement identifies only one-third of these costs, by concluding that the private sector cost burden is about $11.9 million annually. 38 The Department s use of $25 per hour to value the time burden is totally without basis and patently too low. The Department explains that absent specific wage data respondent costs were estimated at $25 per hour. 39 However, relevant wage data is not absent. Relevant data is published by the Department s Bureau of Labor Statistics every quarter in the report 35 Compare p. 14 of the Supporting Statement filed January 2012 for the ETA 9035 form extension without revision with p. 19 of the Supporting Statement filed July 2012 for the ETA 9035 form extension with revision. 36 See Id. for number of expected applications not automatically certified as complete at the time of filing and the comparative cost and time burden in DOL staff time in adjudicating these applications. 37 Supporting Statement, p. 18 and 20, July Supporting Statement, p. 18, July 2012 (sum of cost burden figures). 39 Supporting Statement, p. 18, July AILA-DC 2012 FALL CONF. 587

280 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 15 of 19 entitled Employer Costs of Employee Compensation. 40 That report shows that in January 2012 the average compensation for all employees in the private sector was $30.69 per hour. Furthermore, the compliance activity associated with the ETA 9035 form is likely one that requires specialized management labor, which the BLS report shows is compensated on average at $58.30 per hour. The appropriate basis for estimating the cost of the proposed information collection may be more than twice as high as the amount that the Department assumed in its calculation. Accepting the Department s assertion of only 479,666 annual reporting and recordkeeping burden hours (based on projected 340,000 responses) the corrected annual cost would be about $27.9 million. If, instead, the 1,129,000 responses listed by the Department are used, the annual information collection burden would total $65.8 million. More realistic estimates of the time burden to fill out and maintain the proposed form (to be more than the 70 minutes assumed by the Department) would easily put the annual burden cost over the economically significant threshold of $100 million per year. Burden understated required tasks are complex and time consuming Based on feedback from our members, we contend that completion of the form as revised will be much more time consuming for many employers than the total 70 minutes estimated by the Department. Some examples of the increased burdens created by the proposed form include: 1. Small business concerns. As confirmed by the U.S. Economic Census, 98% of all businesses in America have 100 or fewer employees, 89% have fewer than 20 employees, and 61% have fewer than five employees. Likewise, the Chamber s membership is dominated by small businesses and we are very concerned that DOL s new ETA 9035 and instructions are not adequately responsive to the needs of these small businesses. Small businesses inquired about how to identify and confirm a bona fide job opportunity, a new term introduced by DOL in the form revision, without suggestion of any definition. If there was rulemaking, then DOL would develop a definition to add to its regulatory definitions section at 20 CFR Absent a definition, small companies those that are more likely to not have access to legal counsel or a human resources department with specially certified human resources management professionals are not able to analyze how to comply and how to answer the following questions: o If the individual named is not later placed at one of the specified worksites does that mean the job opportunity was not bona fide at the time the LCA was filed? o What type of evidence would be necessary to prove the job was bona fide at the time of the LCA was filed? 40 AILA-DC 2012 FALL CONF. 588

281 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 16 of 19 o Does the new construct of the form mean that an employer is barred from filing an LCA for an expected future opening at the employer s business premises? o While there must be a specific open job with specified job duties of a specialty occupation at the time any employer files an I-129 Petition for Nonimmigrant Worker with U.S. Citizenship and Immigration Services, are there similar requirements at the time of filing an LCA at the Department of Labor? 2. Limiting LCAs to 10 slots. A few members expressed concern about the 10 slot limitation on the revised LCA, because of the corresponding increased work to complete multiple slot LCAs only in multiples of Recruitment documentation. According to the Statement of Support, [r]etention of the records on consideration of applications from U.S. workers is already required by EEOC regulations and thus the employer is not required to create or retain any new records. 41 Unfortunately, this is an overly broad interpretation of the EEOC s current record keeping requirements. While the EEOC s regulations and guidance materials require employers to retaincertain personnel records, it is inaccurate to claim that the EEOC requires employers to keep any documentationabout consideration of applications. 42 Under the EEOC s Uniform Guidelines for Employee Selection Procedures (UGESP), small employers (those with less than 100 employees) are not required to keep applicant data on a job-by-job basis. 43 Additionally, the UGESP state that the definition of an applicant depends upon the user's recruitment and selection procedures. 44 Because UGESP contemplates some employer discretion as to who is considered an applicant, any record keeping requirements that might pertain to applicants cannot necessarily be applied uniformly. Ultimately, this means that certain employers may not be required to retain some of the records that the revised form proposal requires, potentially making this a new obligation for employers. Further, a January 11, 2011 EEOC opinion letter on employer record keeping undermines the Statement of Support s supposition that employers are the same and that all adhere to the same EEOC record keeping requirements and do so in the same manner. The letter addresses an inquiry from an employer s 41 Statement of Support, p. 16 (July 2012) 42 Id. 43 See Adoption of Questions and Answers To Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures, No Id. AILA-DC 2012 FALL CONF. 589

282 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 17 of 19 representative who asked whether its client s electronic interview system, in which a candidate s job interview and resume are recorded on video tape, satisfied EEOC s record keeping requirements. The EEOC replied that the application records you maintain in your electronic interview system complies with EEOC s record keeping requirements. Thus, the EEOC allows employers to use various methods and manners in order to satisfy any record keeping obligations that they may have. The proposal for LCA form revision is unclear, at best, as to the type of records that might satisfy its requirements; it may create new obligations for employers who retain records in unorthodox, but lawful, ways. The DOL Statement of Support adds no additional assessment of burden to maintain the recruitment documentation, 45 but the information being requested is not identical to that required for EEOC compliance and, thus, the cost burden is underestimated. 4. New business processes, should have been assessed with testing. Most members explained that the new form would necessitate the development of new business processes, some of which interact with electronic systems and databases, and that the information requested on the newly revised form is not the type normally collected by the people historically responsible over the last 20 years for LCA completion. These issues could have been addressed through testing of the proposed form, as specified in former OIRA Administrator Cass Sunstein s August 9, 2012 memorandum to executive agencies entitled Testing and Simplifying Federal Forms. The memorandum includes useful guidance that the Department could heed to consider how to realistically estimate the cost of its current and proposed information collections. The memorandum calls for agencies to engage in advance testing of information collections, including federal forms, in order (1) to ensure that they are not unnecessarily complex, burdensome or confusing, (2) to obtain the best available information about the likely burdens on members of the public (including small businesses), and (3) to identify ways to reduce the burdens and to increase simplification and ease of comprehension. The memorandum identifies a number of ways in which testing could occur, including focus groups, survey questionnaires and controlled experiments. For the proposed information collection on the revised LCA form, the Department could obtain valuable information from a focus group of employers who have experience with the existing form. In particular, employers may be able to 45 Supporting Statement, p. 17, July AILA-DC 2012 FALL CONF. 590

283 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 18 of 19 Conclusion provide useful estimates of the actual time required to make the required calculations regarding H1-B dependency rates and status. The Department took this approach when developing the ETA 9141 (Application for Permanent Employment Certification form). Given that the Department uses an online system for entering information and filing the ETA 9035 form, the Department could obtain some useful information by simply tracking the online time of each filing session. Notwithstanding that this tabulation would be incomplete because it would not reveal time taken offline to assemble information in preparation for an online session, such online time data might provide a useful base from which to start estimating the full compliance time. Surveys of employers who have previously filed the forms would also be a source of information for key items used in the Department s calculations such as the proportion of employers who would be forced to file multiple applications because of the 10 worker per form limitation. In addition, DOL could establish a pilot test of the proposed form using a randomly selected group of previous form filers who would be asked to re-do their prior applications using the new form and to record and report their time to do so. The pilot approach would also provide an opportunity for feedback on clarity and complexity issues. While the August 9, 2012 memorandum is unique in terms of explicitly describing the objectives and means of an information collection testing program, its guidance follows a long-standing expectation that in all regulatory activities (of which information collection under the Paperwork Reduction Act is an element) agencies should base their estimates of public burdens and costs on evidence rather than baseless conjecture and speculation. There is a good reason executive agencies are not permitted to do through form revision what the agency is expected to do through APA rulemaking: Under the APA the agency can complete the full analysis needed to ensure that it moves forward with what it views as mission critical workonly after ensuring it understands the impact to the regulated community. Under the APA, the agency would have to provide (i) a detailed and specific explanation and justification for the dramatic changes, (ii) an analysis on the economic impact as well as impact to small business, and (iii) an opportunity for meaningful feedback from the regulated community. Not only do these steps protect the interests of the regulated community but they ensure the agency produces the best possible regulation with the least amount of burden. AILA-DC 2012 FALL CONF. 591

284 U.S. Department of Labor Office of Foreign Labor Certification Comment on Form ETA 9035, Labor Condition Application OMB Control Number September 7, 2012 Page 19 of 19 Because DOL did not avail itself of the advantages of full rulemaking, the proposal has the following flaws: It mandates the collection of private and protected information that is required by statute to be available to the public, It exceeds statutory authority and regulatory limits, and It is extremely burdensome. We ask that the Department withdraw its request to have OMB reauthorize the ETA 9035 with the proposed significant revisions and instead go forward with full notice and comment rulemaking in order to properly analyze and fine tune the agency s proposed changes to the Labor Condition Application process. Should the Department pursue a full rulemaking, the Chamber stands ready to assist DOL in formulating an appropriate approach. Sincerely, Randel K. Johnson Senior Vice President Labor, Immigration and Employee Benefits Amy M. Nice Executive Director Immigration Policy AILA-DC 2012 FALL CONF. 592

285 U.S. Department of Labor Office of Administrative Law Judges 90 Seventh Street, Suite San Francisco, CA (415) (415) (FAX) ISSUE DATE: 30 JUNE 2011 OALJ CASE : 2011-LCA In the matter of: KEVIN LIMANSETO, Prosecuting Party, v. GANZE & COMPANY, Respondent/Employer. Appearances: Stanley D. Radtke, Esq., for the Prosecuting Party Gordon J. Fine, Esq., for the Respondent/Employer Decision and Order Ganze & Co. (Ganze) made a labor condition application with two inherent components, and wants to ignore half of what it did. Its primary focus was to have a worker. Because Limanseto, the Prosecuting Party, never did its work during the application s three year term, it bridles at the suggestion it should pay him a dime. But then there is the immigration half of the story, the half that requires Ganze to pay, with no offsets. A. Background Limanseto complained to the Department that Ganze hadn t paid him. He became the prosecuting party when he requested review 1 of the November 2, 2010 finding the Administrator of the Wage and 1 The procedural rules published at 29 C.F.R. Part 18, Subpart A govern this review proceeding. 20 C.F.R (a) (2011). AILA-DC 2012 FALL CONF. 593

286 Hour Division made that Ganze hadn t violated the statute or regulations that govern labor condition applications. 2 The trial adjourned on June 2, 2011; record closed after the parties addressed a legal issue. The Administrator s action is reversed. 3 B. Ganze s 2008 H-1B Petition Limanseto wasn t a lawful permanent resident alien. A citizen of Indonesia studying in the United States, 4 he eventually was authorized to be present in the United States at Ganze s behest. 5 It attested 6 that there was a sophisticated job of the type the H-1B statute and regulations describe for Limanseto as a tax accountant 7 that it wanted him to do in the United States. 8 His compensation package was equivalent to what U.S. citizens and lawful residents earned for similar work in Napa, California. 9 He was authorized to be 2 His request for hearing was timely, and Ganze does not contend otherwise. 20 C.F.R (b)(1), (d) (2011). 3 A judge may affirm, deny, reverse, or modify, in whole or in part, the Administrator s determination. 20 C.F.R (b) (2011). 4 Limanseto Ex. 10 (his Indonesian passport) and Joint Statement of Stipulated/Uncontested Facts (Joint Statement) 1, 2, 4, 5. 5 Ganze Ex. 1 and Limanseto Ex. 3. Both notices from U.S. Citizenship and Immigration Services (USCIS) grant the petition Ganze filed for Limanseto s H-1B nonimmigrant status. 6 Promises the employer makes that arise from required statements embedded in its labor condition application are what the regulations sometimes call attestations. 20 C.F.R (c)(2) (2008). The Secretary of Labor enforces those promises. Administrator, Wage and Hour Division v. Integrated Informatics, Inc., ARB No , ALJ No LCA-00026, slip op. at (Jan. 31, 2011). Attestation topics are detailed at 20 C.F.R to (2008). All further citations to the Code of Federal Regulations are to its 2008 edition. 7 Congress created the H-1B visa program to temporarily employ nonimmigrants in the United States in specialty occupations or as fashion models of distinguished merit and ability by amendments to the Immigration and Nationality Act in the Immigration Act of 1990, Pub. L , 104 Stat. 4978, codified at 8 U.S.C. 1101(a)(15)(H)(i)(b) and 1182(n). Specialty occupations require the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor s or more advanced academic degree in the specific specialty as a minimum requirement for entry into the occupation. 8 U.S.C. 1184(i)(1). Tax accounting qualifies. See Limanseto Ex. 8 at Limanseto Ex. 5 at The wage must be the higher of the prevailing wage for the occupation in the area where the nonimmigrant will be employed, or the actual wage the employer pays individuals of similar experience and qualification. 8 U.S.C. 1182(n)(1)(A); 20 C.F.R (b)(2), (3). Additionally health, life, disability, and other insurance plans as well as retirement and savings plans, and cash bonuses and non-cash compensation, such as stock options (whether or not based on performance) must be offered on the same basis, and according to the same criteria, as the employer offers AILA-DC 2012 FALL CONF. 594

287 here from October 1, 2008, to September 2, 2011, 10 because of that specific tax accounting job hence the statute classifies those with H- 1B visas like Limanseto as nonimmigrants. When Ganze signed and submitted its labor condition application to the Department of Labor 11 as part of its H-1B petition, it represented that the statements in it were accurate and acknowledged that it had to comply with its obligations under the H-1B program regulations. 12 It reaffirmed those obligations when it petitioned the immigration authorities in the Department of Homeland Security to approve its H-1B petition. 13 Ganze originally had hired Limanseto from January to April 2006 as an unpaid intern to prepare tax returns, work that earned him credit in his bachelor s program at Sonoma State University. 14 After graduating with a bachelor s degree that year, he returned in August preparing tax returns full-time for Ganze, earning $20 per hour. His visa for undergraduate study apparently permitted that work. 15 He continued to work full time at Ganze until July He began full-time study on September 12, 2007, in the Master of Science in Taxation program in San Francisco at Golden Gate University, a program he would complete in late April, He returned to Ganze in February 2008 as part of his graduate program at Golden Gate, where two CPAs at Ganze, Karen Stuart and John Dillinger, supervised his work preparing tax returns for individuals, fiduciaries, partnerships and corporations. 17 From February 1, 2008, through April them to United States workers. 8 U.S.C. 1182(n)(2)(C)(viii); 20 C.F.R (c)(3)(i). 10 Ganze Ex. 1, the May 9, 2008 Notice Action from U.S. Citizenship and Immigration Services (USCIS) approving the H-1B status for Limanseto that Ganze sought. See also the Petition for Nonimmigrant Worker (form I-129) Ganze filed with the immigration authorities, Limanseto Ex. 4 at Limanseto Ex. 5, which Ganze filed on March 21, To employ an H-1B nonimmigrant, the employer must obtain a certification from the Department of Labor by filing a labor condition application. 8 U.S.C. 1182(n). The program regulations and application (the Department s Form ETA 9035) are discussed comprehensively at 65 Fed. Reg. at 80,110 to 80,208 (Dec. 20, 2000). 12 Limanseto Ex. 5 at Section H (Ganze s labor condition application); see also 20 C.F.R (d). 13 Limanseto Ex. 4, the form I-129 Ganze filed with USCIS, coupled with the legal standard established in 20 C.F.R (d). 14 Joint Statement at Ganze represented in its 2008 H Classification Supplement to form I-129 that it [p]reviously hired Limanseto under [an] optional practical training status. Limanseto Ex. 4 at 22, 1, 2. See also Hearing Transcript (Tr.) at Joint Statement at 4; Limanseto Ex. 9 at 35, 37; Tr. at Joint Statement at 5; Limanseto Exs. 2 at 12 and 8 at AILA-DC 2012 FALL CONF. 595

288 24, 2008, Limanseto was authorized to work at Ganze as a graduate student under his F-1 nonimmigrant student status. 18 He moved to Napa in February of 2008 to be part of the permanent staff of Ganze where he then was paid $23 per hour, raised to $25.30 per hour in July A student present in the United States on an F-1 nonimmigrant visa may receive a change of status to that of an H-1B nonimmigrant worker. An employer petitions the USCIS to grant the student H-1B status as its employee. The Petition for Nonimmigrant Worker and associated labor condition application Ganze filed to change Limanseto s status in June wasn t granted. The statutory limit on H-1B nonimmigrant visas for that year was exhausted on April 2, 2007, the first business day for filing H-1B applications for fiscal year On that one day, USCIS received more than double the number of petitions needed to reach the statutory cap for the fiscal year. 21 But the petition Ganze filed in March 2008 asking the immigration authorities to change Limanseto s status and extend his stay 18 Tr. at 32; Limanseto Ex. 9 at 37 (showing the request Golden Gate University made under 8 C.F.R (f)(10)(ii)(A)(3) on Limanseto s INS form I-20 for optional practical training work status as an F-1 student through May 15, 2009, about 12 months after his graduation from the Golden Gate University master s program in taxation; the hearing transcript at pg. 32 referred to this as OPT). See also, 8 C.F.R (f)(5)(defining the period of a student s F-1 status as the time the student pursues a full course of study at a certified school or engages in authorized optional practical training after completing the course of study). Limanseto was one of what the Department of Homeland Security estimated in April 2008 were approximately 70,000 F-1 students engaged in optional practical training in the United States. 73 Fed. Reg. at 18,950 (April 8, 2008). Ganze errs when it argues that Limanseto s F-1 status terminated when he graduated. It likely converted on May 9, 2008 from F-1 to H-1B when USCIS granted the H-1B status Ganze sought. But if a nonimmigrant can have more than one status at a time, Limanseto s F-1 OPT was good for a year after he graduated. In any event his H-1B status continued until USCIS revoked it in August 2010 (well after Limanseto had returned to Indonesia), when Ganze finally reported to USCIS that Limanseto was not working as its employee. Limanseto had a valid immigration status that permitted him to be present for all of his time in the U.S., in large part due to Ganze s inaction. 19 Limanseto Ex. 2 at 11, 13; and Ex. 8 at 30, Joint Statement at See the interim final rule and request for comments, entitled Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H- 1B Petitions that the Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, published at 73 Fed. Reg. 18,944 (April 8, 2008) at 18,946. At the time of that publication, Ganze s petition for Limanseto s H-1B nonimmigrant visa had been submitted but not yet granted. The petition was submitted on Mar. 25, 2008 (Limanseto Ex. 4 at 21) and was granted on May 9, 2008 (Ganze Ex. 1) AILA-DC 2012 FALL CONF. 596

289 succeeded. 22 USCIS granted Ganze s H-1B petition on May 9, 2008 for the three-year period running from October 1, to September 21, The Immigration and Nationality Act, its regulations, 24 and the Secretary of Labor s labor condition application regulations 25 share the premise that as the beneficiary of Ganze s labor condition application, Limanseto would remain in the United States only so long as Ganze employed him. Ganze doesn t claim that Limanseto rejected the offer of employment [that] became the basis for an alien obtaining or continuing H-1B status; 26 he was fired. 27 C. No Bona Fide Termination The H-1B visa didn t make Limanseto an indentured servant. Both he and Ganze remained free to end the relationship 28 that served as the basis for his immigration status; when it ended, both had to deal with the consequences. The parties agree, and I find, that about six weeks before the October 1, 2008 start date its labor condition application had proposed on August 14, 2008 Ganze ended the employment relationship. 29 That part of Ganze s proof may be sufficient to end the employment under state law, but won t suffice to end its federal liability. 22 Limanseto Ex. 4 at 18, Part 2, 5(b). 23 Joint Statement at 7, 11; Ganze Ex. 1 (the notice from USCIS to Ganze granting its H-1B petition); Limanseto Ex. 5 (the labor condition application Ganze filed with the Dept. of Labor on March 25, 2008) and Limanseto Ex. 4 at (the form I-129 Petition for Nonimmigrant Worker Ganze filed on with immigration authorities on March 25, 2008) C.F.R (h)(11)(i)(A) ( If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition [at USCIS] ) C.F.R (b) C.F.R (h)(4)(iii)(E). 27 Joint Statement at 12; Ganze Ex. 2; Tr. at In analyzing comments from the public when it adopted 20 C.F.R (c)(7), the Department of Labor said: The Department also observed that the employer, at any time, may terminate the employment of the worker, notify INS, and pay the worker s return transportation, thereby ceasing its obligations to pay for non-productive time under the H 1B program. 65 Fed. Reg. 80,170 (Dec. 20, 2000). Duties of the INS later became those of Citizenship and Immigration Services of the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No , 116 Stat. 2135, (Nov. 25, 2002). 29 Joint Statement 12; see also Ganze Ex. 2 (the Notice of Change in Relationship that Ganze prepared dated August 14, 2008); Limanseto Ex. 2 at AILA-DC 2012 FALL CONF. 597

290 A bona fide termination of an H-1B worker requires the employer to prove three things: 1. notice to the worker (which Ganze has shown); 2. notice to Immigration and Customs Enforcement, authorities so that the Form I-129 Petition for a Nonimmigrant Worker can be cancelled; and 3. payment for the worker s transportation home. 30 Ganze neglected to tell the Government it changed its mind and wouldn t be Limanseto s H-1B employer after all. Yet immigration authorities 31 and the Secretary of Labor 32 expect to be told when an H- 1B nonimmigrant isn t working for the petitioning employer. An employer with an approved H-1B application has a powerful incentive to cooperate. Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of 30 Huang v. Ultimo Software Solutions, Inc., ARB No , , ALJ No LCA-11, slip op. at 4 (March 31, 2011) (affirming the ALJ s finding that the employer never effected a bona fide termination under 20 C.F.R (c)(7)(ii), as it must to be relieved of its obligation to pay [the beneficiary s] wages ); Amtel Group v. Yongmahapakorn (Rung), ARB No , ALJ No. 04-LCA-006, slip op. at 2 & n. 4 (Jan. 29, 2008) [hereinafter Amtel II] (Order Denying Reconsideration); Gupta v. Jain Software Consulting, Inc., ARB No , ALJ No LCA-039, slip op. at 5 6 (Mar. 30, 2007); Amtel Group of Florida, Inc. v. Yongmahapakorn (Rung), ARB No , ALJ No LCA-006, slip op. at 9 12 (Sept. 29, 2006) [hereinafter Amtel I];see also 65 Fed. Reg. 80,171 (Dec. 20, 2000) ( The Department agrees that an employer is no longer liable for payments for nonproductive status if there has been a bona fide termination of the employment relationship. The Department would not likely consider it to be a bona fide termination for purposes of this provision unless INS has been notified that the employment relationship has been terminated pursuant to 8 CFR 241.2(h)(11)(i)(A) and the petition canceled, and the employee has been provided with payment for transportation home where required by section 214(E)(5)(A) of the INA and INS regulations at 8 CFR 214.2(h)(4)(iii)(E). (italics in original)). But see, Administrator, Wage & Hour Division v. Ken Technologies, Inc., ARB No , ALJ No LCA-15, slip op. at 4 5 (Sept. 15, 2004) (indicating that failure to notify the immigration authorities is not conclusive on the issue whether the employee was terminated). The Board s more recent decisions such as Amtel I, slip op. at 11 12, can t be reconciled with the idea that a bona fide termination can occur without all three elements. Yet the Board hasn t explicitly receded from Ken Technologies C.F.R (h)(11). A regulation of the Secretary of Labor repeats the requirement an employer with an approved labor condition application must inform the immigration authorities that the employment relationship has been terminated so that the [H-1B] petition is cancelled, incorporating that same immigration regulation. See 20 C.F.R (c)(7)(ii). 32 An employer with an approved labor condition application also should withdraw it at the Department of Labor to end its obligation to pay the required wage rate. 20 C.F.R (b) AILA-DC 2012 FALL CONF. 598

291 one of the duties the employer promises to fulfill when it signs 33 the labor condition application: the duty to pay the required wage rate. Until it does, the employer remains on the hook for the H-1B worker s wages and benefits. For the price of a postage stamp, the Employer often can absolve itself of further liability. 34 U.S. Citizenship and Immigration Services (USCIS) promptly revoked Limanseto s H-1B immigration status more than two years later, when Ganze eventually reported that Limanseto wasn t employed. 35 When it perfected the second element of a bona fide termination, Ganze might have been relieved of its obligation to pay Limanseto s wages when it sent the required notice on August 26, But Ganze remains liable because can t prove the third element of a bona fide termination. 37 To ensure that Limanseto would be able to depart before the three-year employment period Ganze requested had ended, the final element of a bona fide termination required Ganze to pay for his trip home. 38 Limanseto returned home to Indonesia on November 3, 2009 at his own expense, well before Ganze sent USCIS the required notice of termination. Of course he couldn t work for Ganze from Indonesia, 39 so once he departed, Ganze s wage liability might be thought to end. 33 Limanseto Ex. 5 (Ganze s labor condition application) at 25, Section H, where by signing this form it agreed to comply... with the Department of Labor regulations [at] 20 C.F.R. part 655, Subparts H and I; see also 20 C.F.R (d). 34 Gupta, supra, slip op. at 5 6 (discussing the elements of a bona fide termination that ends the H-1B employer s liability for wages and benefits). 35 Once Ganze told USCIS that it didn t employ Limanseto in the capacity specified in the petition, USCIS automatically revoked the petition for the H-1B visa on September 1, 2010, by treating Ganze s petition as withdrawn. See 8 C.F.R (h)(11)(ii); Ganze Ex. 5 (the August 26, 2010, notice to USCIS); Ganze Ex. 6 (the USCIS response revoking Limanseto s immigration status). 36 Mao v. Nasser Engineering & Computing Services, ARB No , ALJ No LCA-36, slip op. at 9 10 (Nov. 26, 2008); Amtel I, slip op. at 9 11 (Sept. 29, 2006). 37 Amtel II, supra, slip op. at 4 5; Amtel I, supra, slip op. at 12 & n.12, U.S.C. 1184(c)(5)(A); 8 C.F.R (h)(4)(iii)(E); 20 C.F.R (c)(7)(ii); 65 Fed. Reg. 80,171 (Dec. 20, 2000). 39 Having been told not to return, his absence from work at Ganze was involuntary. See 20 C.F.R (c)(7)(ii) (describing as circumstances that relieve the employer from its wage obligation, the H-1B worker s voluntary request to be absent from work, perhaps to tour the United States or care for an ill relative); see also 65 Fed. Reg. 80,171 (Dec. 20, 2000) (warning that the Secretary of Labor will look closely at any situation where there is any question about whether the period of nonproductive time is truly voluntary ) AILA-DC 2012 FALL CONF. 599

292 Binding precedent says it continues. The failure to prove every element of a bona fide termination leaves an employer who petitioned for an H- 1B worker s admission liable for the entire period of authorized employment, 40 which here is until September 21, Ganze never paid the cost of return transportation, and an offer now (which hasn t been made) wouldn t do. 42 Limanseto paid for his return home primarily with frequent flier miles, and some cash. The record s vagueness about what a ticket to Indonesia cost when he left makes no difference, because Ganze remains liable for wages for the entire term of the H-1B petition. In that situation, it doesn t owe the cost of return transportation. Ganze is liable for wages for the entire period of the labor condition application, at the actual wage it had been paying him before the attempted termination: $25.30 per hour. 43 D. Mitigation of Damages Doesn t Apply The tax season after Ganze fired him, Limanseto found work for 40 to 50 hours or so per week at another Bay area accounting firm from mid-january 2009 to mid-april at $32 per hour, 44 a higher wage than the $23 per hour Ganze had promised to pay in its labor condition application and H-1B petition, or the $25.30 per hour Ganze was paying before it let him go. He earned about $9,000 there during the 2009 tax season. 45 Upon completion of the master s degree program, Limanseto s F-1 student status may have left him eligible to perform work in the United States related to his field of study for 14 months after graduation. 46 The work he did during the 2009 tax season 40 Amtel I, supra, slip op. at 12 (internal quotations omitted) (requiring the employer to pay wages for the entire term of the labor condition application where the employee paid for her own return transportation home to Thailand after the employer fired her before term of her H-1B petition and its underlying labor condition application had expired). 41 Ganze Ex Amtel II, supra, slip op. at 4 5; Amtel I supra, slip op. at 12 & n Vojtisek-Lom v. Clean Air Technologies International, Inc., ARB No , ALJ No LCA-00009, slip op. at (July 30, 2009) (affirming a back wage calculation based on the higher amount the employer actually paid to the H-1B worker, not the prevailing wage listed on the labor condition application, relying on 8 U.S.C. 1182(n)(1) and 20 C.F.R (a) for the proposition that "[t]he enforceable wage obligation for an employer of an H-1B nonimmigrant is the actual wage or the prevailing wage, whichever is greater. ) 44 Limanseto Ex. 2 at 15; Tr. at Tr. at C.F.R (f)(10)(ii)(A)(3); Limanseto Ex. 9 at 37, the March 7, 2008 form I- 20A-B from Golden Gate University that requested USCIS to authorize employment AILA-DC 2012 FALL CONF. 600

293 occurred during the period post-graduation employment may have been permissible. 47 Ganze expects to have all Limanseto s earnings there deducted from its liability. Not so, on two grounds. First, this is not a cause of action at law for damages due to breach of an employment contract or to remedy invidious discrimination. Then an employer may raise as an affirmative defense a plaintiff s failure to mitigate damages (or as it is sometimes called, willful loss of earnings 48 ) to reduce damages dollar for dollar by available substitute earnings. 49 Ganze s legal responsibility is based on the immigration statute and applicable H-1B regulations, where only compliance with the regulatory program ends or reduces Ganze s liability. When the beneficiary voluntarily requests an absence from the H-1B employment, the statute excuses the H-1B employer from the duty to pay wages. 50 Second, when Limanseto worked for the other firm, he wasn t doing it during a voluntary absence from Ganze. I have already found Ganze proved just the first of the three elements of a bona fide termination. For purposes of the H-1B program he remained an employee; no voluntary absence excused Ganze from paying the in the United States under Limanseto s F-1 student status through May 15, Ganze s success on its H-1B petition about 60 days later (on May 9, 2008) that authorized work for three years may have superseded the more circumscribed 12- month period following graduation in which Limanseto, as an F-1 nonimmigrant student, could work in optional practical training in a job directly related to taxation, his major area of study. See 73 Fed. Reg. 18,945 18,947 (discussing the Cap Gap for students transitioning from F-1 to H-1B status, and authorizing an extension of F 1 student status for those caught in a cap-gap between graduation and the start date of an approved H 1B petition). 47 Limanseto had a colorable claim to work in F-1 OPT status (that Golden Gate University had sought for him) at Bradford & Co. through the 2009 tax season, work completed before that F-1 OPT status expired. The Secretary of Labor need not settle this fine point of immigration law whether Limanseto could simultaneously have H- 1B and F-1 OPT work status to dispose of this H-1B complaint. He had H-1B authorization to be present in the U.S. until Ganze s H-1B petition was revoked by USCIS on Sept. 1, Ganze Ex Phelps Dodge Corp. v. NLRB, 313 U.S. 177, (1941); Kawasaki Motors Mfg. Corp. v. NLRB, 850 F.2d 524, 527 (9th Cir. 1988); NLRB v. Seligman & Assoc., 808 F.2d 1155, , 1168 (6th Cir.1986), referring (with citations omitted) to NLRB v. Westin Hotel, 758 F.2d 1126, (6th Cir. 1985). 49 Johnson v. Roadway Express, Inc., ARB Case No , ALJ Case No STA-00005, slip op. at (Mar. 29, 2000) (discussing the deductions taken from the make whole relief available to an employee who suffers whistleblower discrimination and why the employers proof failed); Timmons v. Franklin Elec. Coop., ARB Case No , ALJ Case No. 97-SWD-2, slip op. at (Dec. 1, 1998) (same) U.S.C. 1182(n)(2)(C)(vii)(IV) AILA-DC 2012 FALL CONF. 601

294 required wages and benefits. 51 Limanseto s absence flowed from the attempt at a bona fide termination Ganze bungled. E. Ganze Must Pay the Lawyer s Fee for its H-1B Application One last violation is involved. An employer who names a foreign worker as the beneficiary in an H-1B petition it files with the United States immigration authorities must pay the related filing and legal fees. These include a fee to submit its Form I-129 Petition for a Nonimmigrant Worker, 52 and a fraud detection fee. 53 The employer is forbidden to reduce the worker s net wages by passing those filing fees, or the H-1B legal costs, back to the worker. 54 Limanseto paid the employer s legal fees in March 2008, 55 when he shouldn t have. Ganze knew the payment of the lawyer s fee was in issue. It offered no documentary proof that it paid any part of the legal fee for its 2008 H-1B petition. F. Ganze s Offset Claim is Both Unavailable and Unpersuasive The request for an offset in the amount of $4, that Ganze raised, claiming Limanseto owes it that much on a promissory note, C.F.R (c)(7)(ii) C.F.R (b)(1) (listing Form I-129 filing fee) U.S.C. 1184(c)(9), (12) U.S.C. 1182(n)(2)(C)(vi)(II), as well as 20 C.F.R (c)(9)(iii)(C) (forbidding deductions from wages for attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer (e.g., preparation and filing of LCA and H-1B petition) ); 20 C.F.R (c)(10)(i)(C) (categorically excluding the filing fees as permissible elements of liquidated damages); and 20 C.F.R (c)(10)(i) (forbidding direct or indirect recovery of any part of the employer s filing fees from the worker); see also, the discussion of 20 C.F.R (c)(10)(ii) at 65 Fed. Reg (Dec 20, 2000) and 144 Cong. Rec. S12752 (Oct. 21, 1998)(8 U.S.C. 1182(n)(2)(C)(iv)(II) prohibits employers from requiring H-1B workers to reimburse or otherwise compensate employers for the new fee imposed under new [INA] section 214(c)(9), or to accept such reimbursement or compensation. ) (statement of Senator Abraham); and 144 Cong. Rec. E2325 (Nov. 12, 1998) ( Congress included this provision to make it very clear that these fees are to be borne by the employer, not passed on to the workers. ) (statement of Congressman Smith). 55 Joint Statement 8 10; Limanseto Ex. 2 at 12 13; Limanseto Ex. 7 at (his cancelled checks for $1,500 he paid to the lawyer who prepared Ganze s 2008 (and the 2007) H-1B filings. See also the correspondence from the lawyer at Limanseto Ex. 6 at 27 (stating that the I-129 petition Ganze filed to obtain H-1B status for Limanseto had been granted) AILA-DC 2012 FALL CONF. 602

295 fails. 56 Ganze s liabilities to pay wages and the H-1B application and related legal fees under the H-1B program simply aren t subject to offset here. The Secretary of Labor adjudicates only those aspects of the parties relationship that arise under the labor condition application and related H-1B visa. 57 Employers can only deduct from wages the items specified in the H-1B program regulations. 58 The Administrative Review Board recently held that wage deductions to repay a loan the employer had made before the H-1B employment period are impermissible; repayment must be handled in a way that doesn t violate the regulations on permissible deductions. 59 Ganze claims to have loaned Limanseto tuition money in early 2008, See Ganze Proposed Ex. 9 (purported unsecured promissory note). The applicable evidentiary standard is the broad one administrative proceedings traditionally employ. Neither the Federal Rules of Evidence, nor the evidentiary rules of the Office of Administrative Law Judges (OALJ) published at 29 C.F.R. Part 18, Subpart B, apply. 20 C.F.R (b). Obedient to the evidentiary principles of the Administrative Procedure Act, 5 U.S.C. 556(d), the applicable regulation says that any oral or documentary evidence may be received and principles designed to ensure production of relevant and probative evidence shall guide the admission of evidence. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitive. 20 C.F.R (b). But the OALJ rules of procedure at apply too. 20 C.F.R (a). The Notice of Rescheduled Hearing and Pre-Hearing Order of February 28, 2011 fixed May 23, 2011 as the date for the parties to exchange their exhibit lists and exhibits, something a judge is empowered to schedule by 29 C.F.R (b). Parties were notified that failure to follow the Pre-Hearing Order could lead to exclusion of evidence. Notice of Rescheduled Hearing and Pre-Hearing Order at 3 (cautioning that a failure to comply with all aspects of this Order subjects the offending party to the exclusion of evidence at the final hearing ). Ganze didn t exchange its proposed exhibit 9 (the purported unsecured promissory note) or 10 (an associated 1099-C) as required, nor did it notify Limanseto before trial of its intention to offer them as exhibits. Objections to both proposed exhibits 9 and 10 were sustained. Tr. at Vojtisek-Lom v. Clean Air Technologies International, Inc., supra, slip op. at 16, upholding an ALJ s exclusion of evidence related to a proposed offset because the Labor Department's jurisdiction under the INA extends only to employment relationships that arise under, or are terminated pursuant to, the INA s H-1B provisions (relying on 8 U.S.C. 1182(n) (1), (2) and 20 C.F.R (a) (b), , , ). 58 See 20 C.F.R (c)(9) (10) (describing authorized and prohibited deductions). 59 Administrator, Wage and Hour Division v. Integrated Informatics, Inc., ARB No , ALJ No LCA-00026, slip op. at 14 (Jan. 31, 2011). Like this case, the employer in Integrated Informatics sought to deduct amounts it had loaned to its H- 1B employee, and evidenced by a promissory note, from the wages it owed. Id. Because that loan agreement was signed more than two weeks before the H-1B status was granted and the associated labor condition application period began, it could not recoup the loan through deductions from the worker's wages. Id. 60 Limanseto Ex. 2 at AILA-DC 2012 FALL CONF. 603

296 although the promissory note it relies on is dated September 8, The labor condition application and the H-1B visa period that were authorized began October 1, Any loan made before they became effective is not a matter the Secretary of Labor will consider in determining whether the nonimmigrant worker was paid what was due under her regulations. This loan falls outside the Secretary of Labor s purview. In the alternative, four reasons lead me to doubt that the excluded promissory note and the debt it purports to evidence are enforceable or genuine. First, the promissory note 62 is facially dubious: created and dated after the termination, it doesn t bear Limanseto s signature. 63 Second, its principal amount is an unusual number ($4,993.11) that appears to represent Ganze s unilateral view of what Limanseto owed as of the date it wanted to fire him, not some amount Lomanseto agreed to borrow and Ganze agreed to lend. Third, s that Ganze retained in the electronic records of its paperless office that could explain the terms of any underlying transaction weren t offered. 64 Fourth, Ganze issued an IRS form 1099-C to Limanseto for the $4, in 2008 that covered what Ganze characterized on that form as a student loan. Ganze represented to the U.S. Treasury Department when it filed the 1099-C on December 15, 2008 that it had cancelled or extinguished Limanseto s alleged liability to it in that amount. 65 Limanseto can t be liable to the Government for income on a forgiven debt and be liable to Ganze to pay the debt. If I had jurisdiction to adjudicate an offset, I would find the proof of indebtedness Ganze offered unpersuasive. 61 Ganze Proposed Ex. 9; see also, Tr. at Ganze Ex. 9, the note, was received for identification only, but not into evidence. Tr. 35. The court reporter s indication at Tr. 65 that Ganze Exhibits 9 and 10 were admitted into evidence is an error. 63 Ganze Ex. 9 for identification; Tr. at 30, 61. The signature of the party against whom enforcement is sought is ordinarily required. Cal. Civil Code 1624(3)(D), (4). 64 Tr. at (the witness for Ganze brought s with her, but they were not offered). 65 According to the U.S. Dept. of the Treasury s 2008 Instructions for Forms A and 1099-C, the form appropriately is filed only when a debt is cancelled, which means there has been a cancellation or extinguishment making the debt unenforceable in a receivership, foreclosure, or similar federal or state court proceeding. at AILA-DC 2012 FALL CONF. 604

297 G. Interest Ganze owes pre-judgment and post-judgment interest on all the amounts due. 66 Interest is due on the wages from the time each installment of wages became due. The wage liability begins the first day of the approved H-1B period, October 1, 2008, 67 and wages became payable at the end of the month; 68 the liability ends only on September 21, Interest is due on the legal fees Ganze had Limanseto pay for its H-1B petition from the time he paid them. The interest rate is that for underpayment of Federal income taxes, determined under 26 U.S.C. 6621(b)(3), plus three percentage points, compounded and posted quarterly. 69 The Secretary s regulations prescribe that the Administrator will oversee the payment of back wages or fringe benefits to any H-1B nonimmigrant who has not been paid... as required. 70 The amounts due (including compound interest) must be calculated by the Administrator, and the Administrator must disburse the unpaid wages, reimbursed legal fees, and associated interest to Limanseto. 71 These duties the regulations describe don t depend on whether the Administrator participated as a litigant in the adjudication that fixes the wages and other amounts due. 72 The amounts Ganze must pay are due immediately Mao, supra, ARB No , ALJ No LCA-36, slip op. at 11 (Nov. 26, 2008); Amtel I, supra, slip op. at 12 14; Inkwell v. Am. Info. Tech. Corp., ARB No , ALJ No LCA-13, slip op. at 8 (Sept. 29, 2006); Doyle v. Hydro Nuclear Servs., ARB Nos , , , ALJ No ERA-022, slip op. at 18 (May 17, 2000) U.S.C. 1182(n)(2)(C)(vii)(I); 20 C.F.R (c)(6)(i); see also the Department s commentary at 65 Fed. Reg. 80,172 (Dec. 20, 2000). Limanseto already had entered into employment with Ganze during his graduate studies. Limanseto Ex. 2 at Hourly wages are payable no less frequently than monthly. 20 C.F.R (c)(4), (5). Neither party proved whether Ganze pays its employees 12, 24 or 26 times per year. 69 Doyle, supra, slip op. at C.F.R (a); see also (f). 71 See 20 C.F.R (f) (prescribing the Administrator s involvement in the distribution of unpaid wages, and presumably other unpaid amounts too). 72 Huang, supra, slip op. at 32 (ALJ Dec. 17, 2008), aff d, ARB No , (Mar. 31, 2011); cf., 20 C.F.R (b)(1) (reposing discretion in the Administrator about whether to intervene when a H-1B worker is the prosecuting party). 73 [B]ack wages, and/or any other remedy(ies)... are immediately due for payment... upon the decision by an administrative law judge C.F.R (f) AILA-DC 2012 FALL CONF. 605

298 Order The Administrator s decision is reversed. It is ordered that within 30 days: 1. Ganze must pay the Administrator for distribution to Limanseto back wages from October 1, 2008 at the rate of $25.30 per hour for 40 hours per week, payable monthly, for weeks; 2. Ganze must pay the Administrator for distribution to Limanseto $1,500 to reimburse Limanseto for what he paid in March 2008 as legal fees associated with preparing the labor condition application and form I-129 Petition for a Nonimmigrant Worker; 3. Ganze must pay pre-judgment interest and post-judgment interest on these amounts at the Federal Short Term Interest rate plus 3%, as specified in 26 U.S.C. 6621, compounded quarterly; the Administrator of the Wage and Hour Division, DOL, must make any calculations necessary and appropriate to effectuate this Decision and Order; and 5. Ganze must pay the amounts computed to the Wage and Hour Division, U.S. Department of Labor, 2800 Cottage Way, Suite W-1836, Sacramento, California So Ordered. San Francisco, California A William Dorsey ADMINISTRATIVE LAW JUDGE Notice of Appeal Rights: To appeal, you must file a Petition for Review ( Petition ) that is received by the Administrative Review Board ( Board ) within thirty (30) calendar days of the date of issuance of the administrative law judge s decision. See 20 C.F.R (a). The Board s address is: Administrative Review Board, U.S. Department of Labor, Room S- 74 See Limanseto Ex. 5 at 23. The Labor Condition Application covers a period of two full years (52 weeks each) plus weeks. Id. Limanseto is listed as a full-time employee, which corresponds to 40 hours per week of work. Id. 75 Amtel I, supra, slip op. at (citing Doyle, supra) AILA-DC 2012 FALL CONF. 606

299 5220, 200 Constitution Avenue, NW, Washington, DC Once an appeal is filed, all inquiries and correspondence should be directed to the Board. At the time you file the Petition with the Board, you must serve it on all parties as well as the administrative law judge. See 20 C.F.R (a). If no Petition is timely filed, then the administrative law judge s decision becomes the final order of the Secretary of Labor. Even if a Petition is timely filed, the administrative law judge s decision becomes the final order of the Secretary of Labor unless the Board issues an order within thirty (30) days of the date the Petition is filed notifying the parties that it has accepted the case for review. See 29 C.F.R (a) AILA-DC 2012 FALL CONF. 607

300 U.S. Department of Labor Office of Administrative Law Judges Merchants Walk - Suite 204 Newport News, VA (757) (757) (FAX) Issue Date: 06 July 2012 ARB Case Nos.: ALJ Case No.: 2009-LCA In the Matter of: ADMINISTRATOR, WAGE AND HOUR DIVISION, Prosecuting Party, and GABRIELE WIRTH, M.D., Prosecuting Party, v. UNIVERSITY OF MIAMI, MILLER SCHOOL OF MEDICINE, Respondent. DECISION AND ORDER ON REMAND This case arises under the H-1B visa program of the Immigration and Nationality Act of 1952 (INA), 8 U.S.C.A. 1101, et seq, as amended, and its implementing regulations found at 20 CFR Part 655, Subparts H and I. By correspondence dated May 28, 2009, and filed with the Office of Administrative Law Judges on June 2, 2009, the Administrator for the Wage and Hour Division, Employment Standards Administration, (Administrator), notified Respondent that an investigation under the H-1B provisions of the Act was completed and Respondent had committed two violations of the INA by (1) failing to pay wages for the periods September 1, 2006 through October 15, 2006 and September 1, 2007 through December 11, 2007, as required by 20 CFR and (2) failing to provide notice of the filing of the Labor Condition Applications (LCA) in violation of 20 CFR AILA-DC 2012 FALL CONF. 608

301 The Respondent was directed to pay $32, in back wages to one specific nonimmigrant H-1B worker and was directed to comply with the provisions of 20 CFR in the future. No civil penalties were levied against the Respondent. On June 12, 2009, the Respondent filed a request for formal hearing with the Office of Administrative Law Judges on both alleged violation issues. On June 10, 2009, the nonimmigrant H-1B worker filed a request for formal hearing with the Office of Administrative Law Judges. A formal hearing was held in Ft. Lauderdale, Florida, December 15 and 16, 2009, with all Parties present. At the hearing the Administrator withdrew the allegation the Respondent failed to provide notice of the filing of the Labor Condition Applications (LCA) in violation of 20 CFR (TR 19-24). On March 31, 2010, this Administrative Law Judge issued the Decision and Order Awarding Accrued Wages and Denying Return Transportation Expense in this case. On April 28, 2010 the Administrator filed an appeal with the Administrative Review Board which was assigned ARB Case No On April 30, 2010,the non-immigrant H-1B worker filed an appeal with the Administrative Review Board which was assigned ARB Case No The Respondent filed a response brief on December 1, By Decision and Order Affirming in Part, Modifying in Part, and Remanding of December 20, 2011, the Administrative Review Board took action to affirm the ALJ s Decision and Order, with modifications, and remand for the limited purpose of recalculating the award of prejudgment interest to [the non-immigrant H-1B worker] as compound interest. 1 The Administrative Review Board remanded the case for the limited purpose of determining the prejudgment interest on back pay and the post-judgment interest payable to the Complainant as a result of the Board s affirmations and modifications. The case file was received from the Administrative Review Board on May 1, By Order of May 15, 2012, the record was reopened for the limited purpose of receiving supplemental evidence and supplemental briefs on the computation of pre-judgment and postjudgment interest payable to the Complainant as a result of the December 20, 2011, Decision and Order of the Administrative Review Board. The Administrator and the non-immigrant H-1B worker, as the named prosecuting parties, and the named Respondent were each directed to file with the Court their respective supplemental evidence and supplemental brief, if any, by June 11, 2012 and to file, with any additional supplemental evidence, their respective response, if any, to any opposing Party s supplemental evidence and brief by June 27, On June 11, 2012, the Respondent filed a Supplemental Brief without any additional supplemental evidence. Neither named Prosecuting Party filed supplemental evidence, supplemental brief or a response to the Respondent s timely filing. DISCUSSION The sole issue on remand is the recalculation of the award of compound interest due and payable under the INA as a result of the Administrative Review Board s action of December 20, ARB D&O at page AILA-DC 2012 FALL CONF. 609

302 As approved by the Administrative Review Board on appeal, the Complainant is entitled to unpaid wages for the following times and wage rate indicated 1. September 5, 2006 through September 20, 2006, inclusive 2 at the rate of $48, per year 3 2. October 12, 2006 through October 15, 2006, inclusive 4 at the rate of $48, per year 3. September 1, 2007 through December 12, 2007, inclusive 5 at the rate of $96, per year Additionally, the Complainant was found entitled to transportation cost for return to the last foreign country of residence prior to employment under the H-1B program with the Respondent. The Administrative Review Board ordered the Respondent to pay $1, for the return transportation costs and to pay pre-judgment and post-judgment compound interest on the back pay award and post-judgment compound interest until the University satisfies its payment obligations. 6 The Board directed that the pre-judgment and post-judgment compound interest paid be calculated in the manner set forth in Doyle v. Hydro Nuclear Services, ARB Nos , , (ARB May 17, 2000) 7, rev d on other grounds sub. nom., Doyle v. U.S. Secretary of Labor, 285 F.3d 243 (3 rd Cir. 2002), cert denied, 537 US 1066 (2003). [The case was reversed on the finding that the complainant had not engaged in protected activity and that the respondent s actions were not related to alleged protected activity. Additionally, the complainant s petition on the issue of damage award was dismissed as moot. The computation of pre-judgment and post-judgment interest became moot on the finding that the complainant had failed to establish a violation of the Energy Reorganization Act of 1974.] Under the Administrative Review Board s decision in Doyle, computation of compound interest requires applying the average monthly applicable federal rate (AFR) of interest for each quarter set forth under 26 USC 6621(b)(3) plus 3%, to the accrued principal and interest owed each separate quarter to the Complainant. The average monthly AFR is determined by averaging the monthly Federal short-term interest rate published by the Internal Revenue Service in their monthly Revenue Rulings. 8 Judicial notice is taken of monthly Federal short-term interest rates published for the period from January 2006 through July 2012 as set forth in the attached ALJ RX-1 9. As noted by the Administrative Review Board, this Administrative Law Judge found that unusual circumstances surrounding the current economic turndown were such that the Complainant would receive an unwarranted monetary windfall if the pre-judgment and postjudgment interest was compounded on a quarterly basis that provided for an increase of 3.0% to Federal short-term interest rates, and that interest as provided by 28 U.S.C was more reflective of lost investment interest that a member of the public would realize for the loss of use 2 ARB D&O at pages 7, 8 and 13 3 ARB D&O at pages 9 and 10 affirming ALJ decision on rate payable prior to May ARB D&O at pages 4 and 13 5 ARB D&O at page 10 and 13 6 ARB D&O at page 11 and 14 7 ARB D&O at page ALJ RX 1 was provided to all the Parties as part of the May 15, 2012 Order (less the July 2012 AFR) AILA-DC 2012 FALL CONF. 610

303 of the adjudged funds during the economic period of time appropriate in this case, as permitted by Doyle, i.d. at page 18. In its decision the Board agreed with the position of the Administrator and Complainant that the current state of the economy (which is reflected in the interest rates charged, whether simple or compound) should not affect the consistent application of relevant Board decisions in this case and that based on Board precedent and policies underlying the H- 1B statutes and regulations, [Complainant] is entitled to pre-judgment and post-judgment compound interest on the pay award until the University satisfies the debt. 10 In its supplemental brief, Respondent reports that payment of back wages and simple interest ordered by the initial March 31, 2010 Recommended Decision and Order was timely tendered to the Complainant on April 30, 2010, in the amount of $21,263.47, less all applicable deductions. The Respondent argues that it should not be liable for any interest for the period from when the Complainant filed her appeal of the Recommended Decision and Order on April 30, 2010 and when the Administrative Review Board issued the December 20, 2011 Decision and Order because it is inequitable to allow an award of prejudgment interest when the delay between the injury and judgment is the fault of the prevailing party The weight of equitable considerations may foreclose any award of prejudgment of interest at all. Blasland, Bouck & Lee, Inc. v. City of North Miami, 283 F.3d 1286, 1297, 1298 (11 th Cir. 2002). Respondent submits there is no reason to tender to the Complainant more than what was set forth in the Recommended Decision and Order and that it would be a misinterpretation of the law to award quarterly compound interest on an amount the Respondent was never given the opportunity to tender. Such an award would result in the unjustified enrichment of the Complainant by almost $10, in addition to post-judgment interest solely because the Complainant appealed the D&O. Additionally, Respondent argues that the Administrative Review Board subsequently awarded approximately $9, in additional monies to the Complainant solely after the Complainant appealed the initial Recommended Decision and Order on April 30, Respondent seeks to have the compound quarterly interest deferred during the period from April 30, 2010 through December 20, 2011, inclusive. Respondent also submits that it should not be liable for any interest that would accrue between December 20, 2011 and May 15, 2012, the day the record was reopen for supplemental evidence and briefs. Respondent submits that it has been willing and able to comply with the judgments of the Court but the delay during that period was due to constraints outside the control of the Respondents and increased liability by approximately $3, in interest during that period. Respondent submits that the weight of equitable considerations set forth by the 11 th Circuit Court of Appeals should be applied during that period to ensure an equitable and fair determination of post-judgment interest. On the issue of compound quarterly interest on the $1, transportation costs ordered paid by the Administrative Review Board, Respondent submits that the Respondent had proffered return transportation to the Complainant and her children when her work with the University was stopped and that the Complainant could not have benefitted from the $1, for transportation in 2009 since it would be expended on transportation at that time and could not have been retained for investment. 10 ARB D&O at pages 12 and AILA-DC 2012 FALL CONF. 611

304 The Administrator did not file supplemental evidence, initial brief or a response to that filed by the Respondent. The Administrator did not file notice or refer to any published Departmental policy. In its initial Petition for Review of the Deputy Administrator filed with the Administrative Review Board on April 28, 2010, the Administrator urged that the current state of the economy should not affect the consistent application of relevant Board decisions in this case and referred to Mao v. Nasser, ARB No (Nov. 26, 2008); Amtel Group of Florida v. Rungvichit Yongmahapakorn, ARB No (Sept. 29, 2006); and Iawalli v. American Info. Tech. Corp., ARB No (Sept. 29, 2006). The Complainant did not file supplemental evidence, initial brief or a response to that filed by the Respondent. In her Opening Brief in Support of a Petition for Review filed with the Administrative Review Board on August 27, 2010, the Complainant addressed the issue of interest in two paragraphs by stating her agreement with the Administrator s brief and adding the citation to the administrative law judge decision in Administrator [Baiju] v. Business Outreach CenterNetwork, Inc., OALJ Case No LCA (ALJ, Apr. 20, 2010). She urges application of 26 USC 6621 for both pre-judgment and post-judgment interest. DECISIONAL FRAMEWORK The purpose of applying interest to pre-judgment and post-judgment monetary awards is to make the recipient whole again. The rationale is based on the perception that the party responsible for payment of accrued monies had the use of those funds during the interim period and that the recipient had been denied use of those funds during the period, such that one party gained an investment opportunity and the other was denied the investment opportunity and had to make up monetary shortfalls during the interim period by use of other personal funds that could have been managed in other ways beneficial to the individual. In the employee protection provision under the Energy Reorganization Act of 1974 case of Doyle v. Hydro Nuclear Services, supra, the Administrative Review Board endorsed the remedial nature of compound interest to make a party whole by stating we hold that the prejudgment interest on back pay ordinarily shall be compound interest. Absent any unusual circumstance, we will award compound interest on back pay in cases arising under all of these employee protection provisions. We provide guidance on the calculation of the total amount of prejudgment interest on back pay the interest rate is that charged on the underpayment of Federal income taxes, which consists of the Federal short-term rate determined under 26 USC 6621(b)(3) plus three percentage points. The Federal short-term interest rate to be used is the so-called applicable federal rate (AFR) for a quarterly period of compounding. To determine the interest for the first quarter of back pay, the parties shall multiply the back pay principal owed for that quarter by the sum of the quarterly average AFR plus three percentage points. To determine the quarterly average interest rate, the parties shall calculate the arithmetic average for the AFR for each of the three months of the calendar quarter, rounded to the nearest whole percentage point. We rounded to the whole number because the parties did so in their evidentiary submissions to the ALJ. To determine the interest for the second quarter of back pay owed, the parties shall add the first quarter principal, the first quarter interest, and the second quarter principal. The resulting sum is multiplied by the second quarter s interest rate as calculated according to the preceding paragraph AILA-DC 2012 FALL CONF. 612

305 This multiplication yields the second quarter of interest. This process shall continue for computing the interest owed on the back pay through the issuance of this decision. In whistleblower cases, we award the same rate of interest on back pay awards, both pre- and postjudgment. Consequently, we order payment of post-judgment interest at the same rate as the pre-judgment interest rate. Further, we order that the post-judgment interest shall be compounded and posted quarterly, in the same fashion as the prejudgment interest. Even though Doyle was overruled by the U.S. Court of Appeals for the Third Circuit on the grounds that there was no basis for relief, and the U.S. Supreme Court denied cert to the complainant, the remedial nature and make whole goal of back pay and the method of computing interest owed on back pay remained the same in subsequent cases arising under the Immigration and Nationality Act and decided by the Administrative Review Board in Mao v. Nasser, supra at page 11; Amtel Group of Florida v. Yongmahapakorn, supra at page ; and Iawalli v. American Info. Tech. Corp., supra at page 8 citing Amtel Group. The Complainant s reference to Administrator [Baiju] v. Business Outreach Center Network, Inc., supra, is of no precedential value since it is merely another Judge s trial level decision in an unrelated case. While the INA does not specifically provide for the award of pre-judgment interest or postjudgment interest on back pay by statute or regulation and the Administrator has failed to provide specific Department of Labor policy guidance on this issue, related Department of Labor programs involving employer discrimination and payment of back pay in enforcement of the discrimination provisions of Federal contracts is addressed by Federal regulations at 41 CFR (a)(2), 41 CFR (a)(1), 41 CFR (a)(1) and 41 CFR (a)(1) which provide OFCCP 12 may seek back pay and other make whole relief for [aggrieved individuals / victims of discrimination] identified during a complaint investigation or compliance investigation. Interest on back pay shall be calculated from the date of the loss and compounded quarterly at the percentage rate established by the Internal Revenue Service for the under-payment of taxes. 13 OFCCP s Federal Contract Compliance Manual, Chapter 7, Identification & Remedy of Employment Discrimination, sets forth Departmental policy related to remedies to make whole the identified aggrieved individuals. Make whole relief means simply that the [aggrieved individual / victim of discrimination] is restored to the position, both economically and in terms of status, that he/she would have occupied had the [underlying event] never taken place. This would normally include things such as back pay with interest and any other employment benefits denied the victim. In construing what constitutes make whole relief, OFCCP has followed Title VII principals. Ibid, at 7F03. The purpose of interest on back pay awards is to compensate the discriminatee for the loss of use of his/her money. OFCCP s policy is that interest on back pay be calculated at the same percentage rate as the Internal Revenue 11 Amtel argued that the Act did not provide for the award of interest on back pay and the ALJ erred in relying on Doyle v. Hydro Nuclear Services. The ARB held that as Amtel has not offered any contrary authority, we order Amtel to also pay prejudgment compound interest on the back pay it owes and post judgment interest until satisfaction in accordance with the procedures to be followed in computing interest due on back pay awards outlined in Doyle. 12 Office of Federal Contract Compliance Programs USC 6621(a)(2), see also 6621(c) when a large corporation is involved AILA-DC 2012 FALL CONF. 613

306 Service s underpayment formula. Simple interest is to be calculated from the first date that is covered by the back pay award. The IRS may adjust its rate quarterly. The interest rate applicable to various periods are set out in Appendix A to this Chapter. Ibid, at 7F07.e. Appendix A explains that interest on back pay is calculated separately for each quarter that back pay is owed and the resulting quarterly interest is added together over the period covered to determine the amount of pre-judgment interest owed. The Appendix indicates that the quarterly average back pay amount to which the appropriate quarterly interest is applied is composed of the total back pay owed at the beginning of the quarter plus one-half of back pay due for the quarter itself. It provides that partial quarters are calculated the same way as full quarters. The total money due is the sum of the back pay owed for the period and the sum of the quarterly interests computed individually. Within the 11 th Circuit, an award of prejudgment interest adjusts the back pay for inflation and reflects the present day value of income that should have been paid to the claimant in the past. Armstrong v. Charlotte County Bd. of Comm., 273 F. Supp. 2d 1312, *2 (M.D. Fla. 2003) citing to EEOC v. Joe s Stone Crab, Inc., 15 F. Supp. 2d 1364, 1379 (S.D. Fla. 1978). Prejudgment interest is applied to back pay to make the aggrieved individual whole, compensate the individual for the true cost of money damages incurred, and prevent the offending party from attempting to enjoy an interest-free loan for as long as it can delay paying out back wages, and to avoid a windfall to either party. Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004) and the cases cited therein. The U.S. Court of Appeals for the Eleventh Circuit directed that prejudgment interest in Title VII employment discrimination cases is to be calculated in accordance with 26 USC McKelvy v. Metal Container Corp, 854 F.2d 448 (11 th Cir. 1988) citing EEOC v. Guardian Pools, Inc., 828 F.2d 1507 (11 th Cir. 1987). On remand to calculate the amount of prejudgment interest owed McKelvy, the District Court found that for periods after the 1986 amendment to 26 USC 6621, the underpayment rate set forth in 26 USC 6621(a)(2) should be applied. McKelvy v. Metal Container Corp, 125 F.R.D. 179 (M.D. Fla. 1989). However, the District Court later found that the over-payment rate, which is effectively the rate at which one lends money to the government to be a more accurate approximation of the return one would have likely achieved over the back-pay period through reasonably safe market investment and went on to average the quarterly over-payment rate for 2008, 2009, 2010 and 2011 and compound the interest annually. Soliday v. 7-Eleven, Inc., 2011 WL (M.D. Fla. 2011). It is specifically noted that 26 USC 6621 currently provides (a)(1) Overpayment rate The overpayment rate established under this section shall be the sum of - (A) the Federal short-term rate determined under subparagraph (b), plus (B) 3 percentage points (2 percentage points in the case of a corporation). (a)(2) Underpayment rate The underpayment rate established under this section shall be the sum of - (A) the Federal short-term rate determined under subparagraph (b), plus (B) 3 percentage points. The Respondent argues that even if prejudgment interest is owed, various periods of time are attributable to delay in the judgment caused by the Complainant. It submits that the factors set out in Blasland, surpa, at pages , must be considered in this case. The factors set forth include delay between injury and judgment that is the fault of the prevailing party; it is AILA-DC 2012 FALL CONF. 614

307 inequitable to award prejudgment interest to a party who could have, but failed to, mitigate damages; restricting the time for computing prejudgment interest to the time from which demand for payment was first made; and it is not equitable to put the payment of interest on the public. The Court held that by promptly paying a judgment against it, a party is not doing anything more than it was legally required to do and does not receive bonus points to decrease prejudgment interest. Blasland is a contract law case and not directly on point in an employment discrimination case. Respondent has failed to introduce evidence that would support governmental immunity to protect the innocent public from paying prejudgment interest in this case. The complaint was timely filed and does not support beginning prejudgment interest from that point instead of from the point where back pay was actually due. Additionally, the Respondent is entitled to credit for payments promptly made following the initial Recommended Decision and Order but does not receive additional credit against prejudgment interest because of those payments. However, factors of delay in proceedings by the Complainant and the duty to mitigate by the prevailing party are applicable to the issue of appropriate prejudgment interest in this case. RECALCULATION OF THE AWARD OF INTEREST I. Factors considered in determining the pre-judgment interest payable to Complainant by Respondent a. Delay in the proceedings attributable to the Complainant. Review of the record before this Administrative Law Judge and before the Administrative Review Board 14 reveals that the Complainant was unable to be located for the initial prehearing scheduling telephone conference call on June 19, 2009 because of her return to Germany. The Complainant did participate in an August 17, 2009 prehearing telephone conference call in which the scheduled October 6 and 7, 2009 formal hearing was moved to commence December 15, Even though the Complainant filed the first request for hearing with the Office of Administrative Law Judges 15 and failed to maintain a point of contact with the Office of Administrative Law Judges, the delay from October 6, 2009 to November 24, 2009 was for the mutual benefit of all the Parties and not due to delay caused by the Complainant. At the close of the formal hearing the date for submission of post-hearing written briefs on specific issues was set. Subsequently, Administrator and Respondent filed a joint request for an extension in time to file post-hearing briefs. This was granted. Any delay in time was not due to delay caused by the Complainant. Review of the administrative file before the Administrative Review Board reveals several requests for extensions in time to file briefs and/or replies by all Parties. The overlapping times involved failed to establish that a particular period of time is attributable solely to the 14 The record of delays, if any, before the Administrator from the November 7, 2007 date of complaint through the May 28, 2009 date of the Administrator s findings are not available for consideration in this case. 15 The Respondent filed a request for formal hearing on June 12, 2009, two days after the Complainant had filed her request for formal hearing AILA-DC 2012 FALL CONF. 615

308 actions of the Complainant. Accordingly, any delay in time was not due to delay caused by the Complainant. In view of the foregoing, this Administrative Law Judge finds that no periods of time in the proceedings are excludable as time periods of delay caused by the Complainant. b. Failure of Complainant to mitigate damages. The record established that the Respondent tendered to the Complainant $5, for use in transporting her household goods back to Germany after her work at the University of Miami, Miller School of Medicine was stopped by directly depositing $5, into the Complainant s bank account on September 28, The Respondents also requested that the Complainant make airplane flight reservations and advise the Respondent of the cost of the flight from Miami to Germany for Complainant and her two daughters. The Complainant returned the $5, directly deposited into her bank account and willfully failed to advise the Respondent of the cost of transportation back to Germany. The Complainant stated she left the United States for a short period in July 14, 2008 and a later period in September 2008 to care for ailing parents. She reported the last time her children left the United States was in At the hearing the Parties accepted the judicial notice that $1, was the reasonable value of individual coach airfare from Miami to Germany. This same figure was set by the Administrative Review Board as the cost of transportation to be paid to the Complainant following a finding that her employment had been terminated by Respondent vice the initial Court finding that the Complainant had resigned from her position. This Administrative Law Judge finds that the Complainant failed to properly mitigate damages involving her transportation from Miami to Germany and is not entitled to prejudgment interest on the $1, transportation amount. Filings with the Administrative Review Board include a Motion to Resolve the Issue of an Uncashed Check that was Issued Pursuant to the Decision and Order Which is in Review filed by the Complainant. This filing indicates that the Respondent issued and delivered a check dated April 30, 2010 to the Complainant in the total amount $14, Attached documents report that Medicare taxes in the amount of $306.87, FICA taxes in the amount of $1,312.14, and Federal withholding taxes in the amount of $4, were deducted from a gross amount of $21, Of the $21, gross total, Respondent attributed $18, to back wages and $2, to interest. The Complainant indicated that the original check was still in her possession, uncashed, and expired. The copy of the issued check filed by the Complainant does not indicate an expiration date. The Complainant indicated that The original check is in my possession for the following reasons: I wished to avoid the appearance of accepting any part of the ALJ D&O [and] I waited for an ARB Hearing Panel to be in place before filing a motion notifying the ARB of the issue. While the Complainant stated her reason for not redeeming the $14, check, her reasons do not counter the Respondent s action of tendering to her payment of the proceeds of back wages and simple interest of $21, on April 30, 2010, less required tax deductions that were ordered by this Administrative Law Judge in the initial Recommended Decision and Order. Accordingly, the Complainant is not entitled to additional compound interest on the AILA-DC 2012 FALL CONF. 616

309 gross $21, after April 30, 2010, but, if the check is truly expired and uncashed, she is entitled to having the check reissued in the net amount of $14, upon her delivery to the Respondent of the original uncashed check. c. Considerations in calculating prejudgment interest. In view of the matters set forth in the Decisional Framework paragraph, above, the following factors are considered in calculating prejudgment interest (i) Prejudgment interest in partial calendar quarters are computed in the same manner as full calendar quarters. (ii) Interest will be compounded quarterly, based on the respective calendar quarterly average of the underpayment interest rate set forth in 26 USC 6621(a)(2). The respective quarterly interest to be applied is the mathematical average of the Federal shortterm interest rate published by the Internal Revenue Service for each month of a respective calendar quarter, rounded to the nearest whole percent, with 3 percentage points added to that whole percentage number. (iii)the quarterly average back pay subject to the respective quarterly interest to be applied is the sum of the accrued principal and interest at the end of the preceding calendar quarter plus ½ of the back pay payable during the respective calendar quarter. If a payment of back pay and/or interest is made, it is reflected as a negative value in the quarter paid. (iv) The respective quarterly interest payable is the product of the respective quarterly interest to be applied to the respective quarterly average back pay (v) The accrued principal and interest at the end of a respective calendar quarter is the sum of that respective calendar quarter s full back pay owed/paid, plus the accrued principal and interest at the end of the previous quarter, plus the newly calculated quarterly interest payable II. Calculation of compound interest on back wages. The Administrative Review Board has determined that the Complainant is entitled to unpaid wages for September 5, 2006 through September 20, 2006, inclusive at the rate of $48, per year; October 12, 2006 through October 15, 2006, inclusive at the rate of $48, per year; and September 1, 2007 through December 12, 2007, inclusive at the rate of $96, per year. The hearing record established that the Complainant was paid wages on a monthly basis at the end of the month. Thus the back wages payable for September 5, 2006 through September 20, 2006, inclusive, were payable on September 30, Since the applicable wage rate for these 16 days was $48, per year (the equivalent wage rate of $4, per month or $ per week), the Complainant was owed a back wage of $2, on September 30, Similarly, the Complainant was owed a back wage of $ on October 31, 2006 for the four days of October 12, 2006 through October 15, Finally for the period of September 1, (16 days / 7 days per week)($ per week) 17 (4 days / 7 days per week)($ per week) AILA-DC 2012 FALL CONF. 617

310 through December 12, 2007, inclusive, the Complainant was owed $8, on September 30, 2007; $8, on October 31, 2007; $8, on November 30, 2007; and $3, on December 12, This is a total of back wages in the amount of $29, The actual wage payment to the Complainant is required to be reduced by all federal, state and local income, social security and Medicare taxes required to be withheld, 20 CFR (c). In order to calculate the prejudgment interest payable to the Complainant, as ordered by the Administrative Review Board, the considerations set forth in paragraph I, above, were applied. This included consideration of the April 30, 2010 payment when made by the Respondent. Attached exhibit ALJ RX-2 sets forth the calculation of compound quarterly interest payable in this case in view of the Administrative Review Board Decision and Order and the matters set forth above. As indicated in ALJ RX-2, the back wage owed totaled $29,802.21; the Respondent received credit for gross payment of $18, in back wages tendered Complainant on April 30, 2010; and the Respondent received credit for gross payment of $2, in accrued interest tendered Complainant on April 30, Accordingly, as of June 30, 2012, the Respondent owes the Complainant $10, in accrued back wages and $26, in accrued quarterly compound interest, less applicable Federal, state and local income, social security and Medicare taxes applicable to back wages and interest. 22 III. Calculation of compound interest on transportation expenses. The Administrative Review Board determined that the Complainant was fired by Respondent, did not voluntarily resign in July 2006, and ended her H-1B non-immigrant employment on December 12, Accordingly, the Board ordered that the Respondent pay $1, to the Complainant for her return transportation costs based on termination of employment by the Respondent. Accordingly, this Administrative Law Judge finds that while the Complainant is entitled to payment of $1, for travel from Miami, Florida to Germany, for reason set forth above, she is not entitled to prejudgment interest for this transportation cost. IV. Calculation of post-judgment interest. Post-judgment interest begins to accrue following a reasonable time after this Decision and Order is issued, since the Respondent must be afforded a reasonable opportunity to promptly comply with the Order issued. 18 The monthly wage rate of $96, per year. 19 (12 days / 7 days per week)($96, per year / 52 weeks per year) 20 ($29, total adjudged accrued back wages) less ($18, tendered back wages) 21 ($37, total accrued non-tendered back wages and non-tendered compound interest owed 2 nd quarter 2012) less ($10, in non-tendered accrued back wages still owed) 22 See 20 CFR (c) AILA-DC 2012 FALL CONF. 618

311 Post-judgment interest is calculated in the manner set forth herein for pre-judgment interest. That is the $37, in principal and interest accrued at the end of the second quarter of 2012 is to be compounded quarterly until paid by the respective calendar quarterly average of the underpayment interest rate set forth in 26 USC 6621(a)(2) in a manner consistent with paragraph I.c above. ORDER In view of all the foregoing, it is hereby ORDERED: 1. Respondent is directed to deliver to the Complainant accrued back pay and interest in the amount remaining after tax withholding have been deducted from the total accrued amount of $37, Payment of the required remaining amount, after required tax withholdings have been deducted, shall be tendered by appropriate certified mail and/or courier, to the Complainant at her address of record, Via di Parione, 40, Rome, Italy, or such other address or means mutually agreeable to the Complainant and Respondent. 3. The Respondent is directed to tender payment of the required remaining amount, after required tax withholdings have been deducted, on or before Tuesday, July 31, The date the required remaining amount is placed in certified mail and/or delivered to the courier, or as otherwise mutually agreed in writing by the Complainant and Respondent shall be the date upon which tender of payment occurs. 4. Failure to tender the full required remaining amount, after required tax withholdings have been deducted, to the Complainant on or before July 31, 2012 shall result in additional post-judgment interest at the underpayment rate set forth at 26 USC 6621(a)(2) compounded on a calendar quarterly basis, in the manner set forth herein for prejudgment interest, until paid in full. 5. Upon return to the Respondent of the April 30, 2010, $14, check held by the Complainant, the Respondent is directed to expeditiously return to the Complainant an appropriate replacement payment of the $14, ALB/jcb Newport News, Virginia A ALAN L. BERGSTROM Administrative Law Judge 23 Appropriate forms of payment would include electronic fund transfer, certified check, and wired money order AILA-DC 2012 FALL CONF. 619

312 Monthly Federal Short-Term Interest Rates for use in ARB Quarterly Period Compounding The monthly Federal short-term interest rates are found in monthly Revenue Rulings at January February March st Quarter Average April May June nd Quarter Average July August September rd Quarter Average October November December th Quarter Average ALJ RX AILA-DC 2012 FALL CONF. 620

313 U.S. Department of Labor Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C In the Matter of: ADMINISTRATOR, WAGE AND ARB CASE NO HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, ALJ CASE NO LCA-023 v. PROSECUTING PARTY, DATE: August 31, 2012 CAMO TECHNOLOGIES, INC., RESPONDENT. BEFORE: THE ADMINISTRATIVE REVIEW BOARD Appearances: For the Prosecuting Party: Joan Brenner, Esq.; Paul L. Frieden, Esq.; William C. Lesser, Esq.; Jennifer S. Brand, Esq.; and M. Patricia Smith, United States Department of Labor, Washington, District of Columbia For the Respondent: William A. Stock, Esq.; Klasko, Rulon, Stock, & Seltzer, LLP; Philadelphia, Pennsylvania BEFORE: Paul M. Igasaki, Chief Administrative Appeals Judge; Joanne Royce, Administrative Appeals Judge, and Luis A. Corchado, Administrative Appeals Judge FINAL DECISION AND ORDER USDOL/OALJ REPORTER PAGE 1 AILA-DC 2012 FALL CONF. 621

314 This case arises under the Immigration and Nationality Act (INA or the Act) and its implementing regulations. 8 U.S.C.A (West 1999 & Thompson Reuters Supp. 2011), as implemented at 20 C.F.R. Part 655, Subparts H and I (2012). Following a complaint and ensuing investigation, the Department of Labor s Wage and Hour Division determined that the Respondent, Camo Technologies, Inc. (CTI) had willfully failed to comply with and substantially violated the Act s notice-posting and document-maintenance provisions. Wage and Hour assessed civil money penalties and recommended debarment. CTI requested a hearing. Subsequent to a hearing, a Department of Labor Administrative Law Judge (ALJ) determined that the violations were neither willful nor substantial. Accordingly, the ALJ rejected the civil money penalties assessed and debarment recommended by the Administrator, Wage and Hour Division. The Administrator appealed. We reverse the ALJ s decision. STATUTORY AND REGULATORY SCHEME The H-1B non-immigrant worker program is a component of the INA that permits the temporary employment of non-immigrants to fill specialized jobs in the United States. See 8 U.S.C.A. 1101(a)(15)(H)(i)(b), 1182(n); 20 C.F.R. Part 655, subparts H and I. An employer who seeks to hire a non-immigrant in a specialty occupation must submit a Labor Condition Application (LCA) to the Department of Labor. The LCA sets forth, among other things, the rate of pay, period of employment, occupation, and information relating to the nonimmigrant s work location. If the Labor Department certifies the LCA, the employer files a Petition for a Non-Immigrant Worker with the Department of Homeland Security s United States Citizenship and Immigration Services (USCIS). If USCIS approves the petition, the non-immigrant worker may obtain a visa from the Department of State, allowing him to enter the country and work for a temporary period. See 8 U.S.C.A. 1184(g)(4); 8 C.F.R (h)(2)(i)(D), (9)(iii)(A)(1), (13)(iii)(A), (15)(ii)(B). On or within 30 days before the date the employer files the LCA, the employer must provide notice to United States workers of its intent to hire an H-1B worker by providing notice of the impending filing. 1 The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B nonimmigrant will be employed. If there is no such bargaining representative, the employer must post such notices in two conspicuous locations for 10 days at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity). The notice must indicate the number of H-1B nonimmigrants sought; the occupational classification; the 1 A United States worker is defined as either, (1) a citizen or national of the United States, or (2) an alien who is lawfully admitted for permanent residence in the United States, is admitted as a refugee under INA section 207, is granted asylum under INA section 208, or is an immigrant otherwise authorized by the INA or the Department of Homeland Security to be employed in the United States. 20 C.F.R USDOL/OALJ REPORTER PAGE 2 AILA-DC 2012 FALL CONF. 622

315 wages offered; the period of employment; the location(s) at which the H-1B nonimmigrant(s) will be employed, and that the LCA is available for public inspection at the employer s principal place of business in the U.S. or at the worksite. 20 C.F.R ; see also 8 U.S.C.A. 1182(n)(1)(C). Place of employment is defined as the worksite or physical location where the work actually is performed by the H-1B... nonimmigrant, but the regulation includes several exceptions not applicable in this case. See 20 C.F.R Definitions Place of employment; see also infra at n.4. The DOL has authority to investigate complaints, 2 to enforce the H-1B visa program provisions by imposing civil money penalties, and to refer the employer to the Department of Homeland Security for disqualification from participation in the H-1B visa program for a prescribed period of time a process known as debarment. 3 Wage and Hour s Administrator may assess civil money penalties of up to $1,000 per violation for notification violations under 20 C.F.R if they are substantial, or $5,000 per violation for notice violations if the violations are willful. 20 C.F.R (b)(1)(ii), (b)(2). Pursuant to 20 C.F.R (c), a willful failure means a knowing failure or a reckless disregard with respect to whether the conduct was contrary to sections 212(n)(1)(A)(i) or (ii), or 212(t)(1)(A)(i) or (ii), or or See McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) (employer either knew or showed reckless disregard for the matter of whether the statute prohibited its conduct); see also Trans World Airlines v. Thurston, 469 U.S. 111 (1985). The relevant regulations do not include a definition of a substantial violation. The ARB has recognized that an H-1B employer s compliance with the essential requirements of a statute or regulation may show that the employer had not substantially failed to comply with the rule, and thus an ALJ could reasonably conclude that civil money penalties were not warranted in that case. Santiglia v. Sun Microsystems, Inc., ARB No , ALJ No LCA-002, slip op. at 9 (ARB July 29, 2005). Notice-Posting History from BACKGROUND The Respondent admitted the essential facts in this case. See Joint Exhibit 12 (JX) (Stipulations 1-66.) CTI is an information technology firm located in Woodbridge, New Jersey. CTI contracts with its few direct or primary clients to place its H-1B workers with other businesses or secondary clients located throughout the United States. Transcript (T.) at (uncontroverted testimony of Nalini Parsram, CTI s vice president of Human Resources and Administration, that CTI only had a few direct U.S.C.A. 1182(n)(2)(A); 20 C.F.R , U.S.C.A. 1182(n)(2)(C); 20 C.F.R (A)(4), , USDOL/OALJ REPORTER PAGE 3 AILA-DC 2012 FALL CONF. 623

316 clients). Before December 2001, CTI operated as Bit Tech, Inc. a/k/a BIT Technologies, Inc. ( BIT Tech ). Stipulations 13, 24, 25. In December 2001, CAMO, Inc. acquired BIT Tech and BIT Tech changed its name to Camo Technologies, Inc., a division of CAMO, Inc. Stipulation 24. Ashwani Jasti founded BIT Tech and then served as the president of CTI. Stipulations 12, 13. Nalini Parsram (or Jasti) was BIT Tech s Business Development Director and then ultimately became CTI s Vice President, Human Resources and Administration. Stipulations 14, 37. The Respondent further admitted that Wage and Hour Investigator John Warner sent an to Parsram on October 15, 2001, expressly setting forth the legally mandated LCA notice-posting requirements. Stipulation 20 (the ). In the , Warner cited to the regulation regarding the notice-posting requirement, namely 20 C.F.R , and indicated that workers, AT THE PLACE OF EMPLOYMENT should be able to easily read or see the notice. Id. (emphasis in original). The further explained to Parsram that BIT Tech s method of posting at BIT Tech s Woodbridge principal place of business was insufficient. Id. Importantly, the expressly warned about civil penalties and other sanctions for substantial failure to post. Id. The Respondent admitted that the Administrator discussed or investigated CTI and/or BIT Tech s notice-posting practices on several occasions after the to Parsram and before January 19, On October 17, 2001, a BIT Tech manager informed Warner that BIT Tech would henceforth comply with the posting requirements. Stipulation 22. BIT Tech then informed Warner that BIT Tech posted notice of filing the LCA at 60 third party worksites in 17 states. Stipulation 23. The Respondent admitted that, after BIT Tech became CTI, the Administrator issued a determination letter on June 17, 2002, finding that BIT Tech failed to post notice of filing of the LCAs at all 60 worksites in 17 states where it placed its H-1B employees, in violation of 20 C.F.R Stipulation 26. The Respondent admitted that the Administrator investigated violations during a 2005 Investigation that included CTI s alleged failure to post notice of filing the LCAs at all the work locations. Admittedly, the 2005 Investigation resulted in a 2006 Determination Letter finding that CTI failed to provide notice of filings of the LCAs at each worksite where it placed its H-1B employees, in violation of 20 C.F.R Stipulation 34. Following the and the 2006 Determination Letter, CTI admittedly did not post an LCA notice or notice of filing and LCA at 67 locations identified as a Place of Intended Employment/Worksite Location for the H-1B nonimmigrant worker in one of 26 states (the 67 Worksites ). Stipulation 55; JX 2; see e.g. JX 4. For each of those 67 Worksites, CTI identified the related LCA and stated that the Dates of Petitioned Employment would last for approximately one year or more during 2007 through Stipulation 55; JX 2. CTI assigned the H-1B workers it sponsored in 4 This admission of year-long or multi-year placements removes the possibility that the 67 Worksites were excluded from the definition of worksite locations as troubleshooting computer engineers. Pursuant to the regulatory definition of place of employment, the USDOL/OALJ REPORTER PAGE 4 AILA-DC 2012 FALL CONF. 624

317 these LCAs, and others, to locations throughout the country, which CTI neither owned nor operated, and in which these workers spent the majority of their working hours. The occupational classification designated on the LCAs at issue in this case were for computer programmers, analysts, software engineers and related specialty occupations pertaining to the information technology industry. Stipulations 4, 5, Investigation In 2010, Wage and Hour investigated CTI for alleged violations of the Act occurring after its 2006 determination, including the failure to post the requisite notice of LCA filings. Stipulations Testifying for CTI, Parsram stated that she informed DOL s investigator that CTI s practice was to place its H-1B workers at worksites owned and controlled by CTI s clients. Parsram explained that, alternatively, CTI s own client(s) would in turn assign CTI s H-1B workers to worksites controlled by that client s client referred to as an end-user. Parsram testified that in this latter instance, it is at the end-user s worksite that the H-1B worker is performing services. T. at 202. Parsram explained that CTI would post notice of the LCA filing at its offices in New Jersey. Where the H-1B worker was to be placed at the direct client s worksite, CTI would post notice there after getting permission to post. Where the H-1B worker was to be placed by a direct client at a work location controlled by their client or the end-user, Parsram stated that CTI s policy was to ask the direct client to ask its client, the end-user, for permission to post notice at that worksite. Where permission was granted, CTI would provide the H-1B worker with a copy of the relevant LCA and direct that worker to post the LCA in a conspicuous place at that worksite when the worker was first required to report for work there. Where the direct client or the end-user denied permission to post, CTI would instruct its H-1B workers to report to that worksite anyway. T. at , 186; see Stipulations CTI developed forms for the posting process and documented its success or failure to post notice. Id.; Stipulations During the period relevant to this case, CTI failed to post notice in connection with 67 LCAs. Stipulations 49-53, 56-59; see JX 2. In connection with the 2009 investigation, Parsram testified that she had no concerns about producing documents detailing CTI s notice-posting practices to DOL s investigator because she really thought we were compliant. T. at 186. Parsram added, however, that CTI changed its notice-posting practice in April 2010 to mandate noticeposting at the end client location if we have to have our consultants working there, our employees, and she ensures compliance herself. T. at , Following the investigation, Wage and Hour issued a Determination Letter on May 7, It assessed civil money penalties in the amount of $192,625 and proposed an at least 2-year debarment for what it determined to be CTI s willful failure to meet, meaning of worksites of place of employment excludes locations to which troubleshooting computer engineers go for a short time period, but expressly includes computer engineers sent to a location for weeks or months at a time. See 20 C.F.R (1)(ii)(C)(2), (3). USDOL/OALJ REPORTER PAGE 5 AILA-DC 2012 FALL CONF. 625

318 and substantial violation of, the notice-posting requirement at 20 C.F.R JX 1, 11. CTI objected to the Determination and requested a hearing. After a September 8, 2008 hearing, the ALJ found that CTI s failure to comply with the notice-posting requirement was not willful and the violation was not substantial. The ALJ assessed no civil money penalty and held that debarment was inappropriate; the ALJ determined that the Administrator had failed to consider all factors in assessing civil money penalties. The Administrator appeals, asserting willful failure or, alternatively, a substantial violation to comply with the notice-posting requirement. The Administrator urges the Board to reverse the ALJ s decision and uphold the Administrator s May 7, 2010 determination assessing civil money penalties and recommending that CTI be debarred. CTI seeks affirmance and any other just relief. 6 As provided in 20 C.F.R (e), the Board specified the following issues for review in its February 10, 2011 Notice of Intent to Review: (1) Did the ALJ properly find that the Respondent did not willfully violate the H-1B provisions when it failed to provide notice of the Labor Condition Applications (LCAs) as required by 20 C.F.R ? (2) Did the ALJ properly find that the Respondent s failure to post notice of the LCA filings for workers at third-party worksites was not substantial? (3) Did the ALJ err by refusing to award civil money penalties against and to debar the Respondent for the notice violations? JURISDICTION AND STANDARD OF REVIEW The Administrative Review Board has jurisdiction to review the ALJ s decision. 7 Under the Administrative Procedure Act, the ARB, as the Secretary of Labor s designee, 5 The May 7, 2010 Determination of the Administrator, Wage and Hour Division, reflects that CTI would be debarred from participation in the H-1B visa program for a period of at least two years, consistent with the statutory provisions at 8 U.S.C.A. 1154, 1184(c). JX 1 at 2. Before us, the Acting Administrator, Wage and Hour Division, indicates that the Administrator recommended that CTI be debarred for two years. Acting Administrator s Brief at 3. 6 We accept CTI s motion for leave to file its Surreply and consider it herein. 7 8 U.S.C.A. 1182(n)(2); 20 C.F.R See Secretary s Order No , 75 Fed. Reg (Jan. 15, 2010) (delegating to the ARB the Secretary s authority to review cases arising under, inter alia, the INA). USDOL/OALJ REPORTER PAGE 6 AILA-DC 2012 FALL CONF. 626

319 acts with all the powers [the Secretary] would have in making the initial decision The Board reviews an ALJ s legal conclusions under the INA de novo. 9 DISCUSSION CTI committed a willful violation of the INA s H-1B notice-posting requirement, warranting imposition of civil money penalties and referral for debarment We consider the Administrator s argument that the ALJ erred in finding that CTI did not commit a willful violation of the INA s H-1B notice-posting requirement warranting civil money penalties and debarment. The ALJ acknowledged that it is uncontroverted that CTI did not post notice of the filing of the LCAs at the actual location where non-immigrants worked. The ALJ added that CTI does not deny awareness of the posting requirements, and the record establishes that Respondent made attempts to facilitate posting at the work site of the H-1B workers. Decision and Order at 18. The ALJ initially found that while CTI had actual knowledge of its obligation to post at all locations where its H-1B workers worked, the evidence failed to establish that CTI knowingly and intentionally violated the posting requirement. Id. at 19. Specifically, the ALJ found that CTI showed good faith and, (1) posted notices in its main offices; (2) developed a system, after the 2005 investigation, to document its attempts to post LCAs with third party end users of non-immigrants who were contracted out by Respondent s direct customers; 10 and (3) posted at several sites out of its control. Id. at Stated simply, the ALJ s ultimate conclusions squarely contradict the stipulated facts in this case. First, CTI admitted that it did not post a notice at the 67 Worksites identified as Places of Intended Employment. CTI sent its H-1B workers to work at these 67 Worksites irrespective of whether or not its attempt to meet the notice-posting requirement was successful. CTI admitted that the intended period of employment was one year or more at these 67 Worksites, which means that the 67 Worksites clearly satisfied the definition of a place of employment. See 20 C.F.R (1)(ii)(C)(3). CTI admitted that a Wage and Hour investigator sent an to Parsram explicitly explaining that posting must be done at the place of employment, posting at the Woodbridge headquarters was insufficient, and that civil penalties could be imposed for violations of the posting requirement. Parsram was CTI s only witness at the hearing. CTI admitted to numerous instances where the Administrator raised concerns about 8 5 U.S.C.A. 557(b) (West 1996). 9 Yano Enters., Inc. v. Administrator, ARB No , ALJ No LCA-001, slip op. at 3 (ARB Sept. 26, 2001); Administrator v. Jackson, ARB No , ALJ No LCA-004, slip op. at 3 (ARB Apr. 30, 2001). 10 CTI was required to post notice of the filing of the LCAs not to post the LCAs. USDOL/OALJ REPORTER PAGE 7 AILA-DC 2012 FALL CONF. 627

320 CTI s posting practices being insufficient, including a 2006 Determination Letter finding that CTI violated the notice-posting requirements of 20 C.F.R CTI s admissions established that it violated the posting requirements 67 times from 2006 through 2009 and that Wage and Hour repeatedly notified it over several years of its deficient posting before Consequently, these admissions establish as a matter of law that from 2006 through 2009, CTI willfully violated the posting requirements of 8 U.S.C.A. 1182(n)(1) and 20 C.F.R See Administrator v. Pegasus Consulting Group, Inc., ARB No , ALJ No LCA-021, slip op. at 7 (ARB Apr. 28, 2009). Further, we note that the purpose of the notice-posting requirement is the protection of U.S. workers from displacement by H-1B non-immigrant workers. 65 Fed. Reg (Dec. 20, 2000). The notice-posting requirement precedes the filing of the LCA and precedes the placement of an H-1B nonimmigrant worker necessarily where its purpose is to prevent displacement of U.S. workers. While the type/character of violation informs the remedy, the Administrator notes that the importance of the posting of notice requirement may be gauged by the fact that the regulations contain no exception to such requirement even where, such as here, the employer had to have its client post the notice. Statement of the Acting Administrator at 17 quoting 65 Fed. Reg (Dec. 20, 2000); see also 20 C.F.R (a)(1)(ii)(A)(regulation requires posting at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity) ). 11 On the facts of this case, we hold that CTI s failure to comply was knowing and therefore willful, sufficient to support the imposition of remedies as assessed by the Administrator. In short, a knowing failure to comply is a willful failure to comply, and the ALJ erred in not finding a willful violation of the Act warranting imposing civil money penalties. 12 Pegasus, ARB No Based on the foregoing, we reverse the ALJ s finding that the Administrator did not establish a willful violation of the Act s notice-posting requirement. Therefore, we uphold as reasonable the Administrator s assessment of $192,625 in civil money penalties and refer this case for CTI s debarment. 8 U.S.C.A. 1154,1184(c); 20 C.F.R (d), (b)(4); see Administrator, Wage & Hour Division v. The Lambents Grp., ARB No , ALJ No LCA-036, slip op. at 8 n.36 (ARB Nov. 30, 2011). 11 In limited situations not relevant to this case, the regulations allow the employer to post the H-1B notice after filing the corresponding LCA. Where an employer places any H- 1B nonimmigrant(s) at one or more worksites not contemplated at the time of filing the application, but which are within the area of intended employment listed on the LCA, the employer is required to post electronic or hard-copy notice(s) at such worksite(s), in the manner described in paragraph (a)(1) of this section, on or before the date any H-1B nonimmigrant begins work. 20 C.F.R (a)(2). 12 Because we find a willful failure to comply with the notice-posting requirement, we do not reach the issue of whether CTI committed a substantial violation of that requirement. USDOL/OALJ REPORTER PAGE 8 AILA-DC 2012 FALL CONF. 628

321 CONCLUSION We REVERSE the ALJ s conclusion that the Acting Administrator failed to meet her burden to establish that CTI willfully violated the INA s H-1B notice-posting requirement warranting civil money penalties and debarment. We AFFIRM the Administrator s assessment of civil money penalties and refer the case for CTI s debarment. SO ORDERED. LUIS A. CORCHADO Administrative Appeals Judge PAUL M. IGASAKI Chief Administrative Appeals Judge JOANNE ROYCE Administrative Appeals Judge USDOL/OALJ REPORTER PAGE 9 AILA-DC 2012 FALL CONF. 629

322 U.S. Department of Labor Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C In the Matter of: BISHNU S. BAIJU, ARB CASE NO PROSECUTING PARTY, ALJ CASE NO LCA-045 v. DATE: March 30, 2012 FIFTH AVENUE COMMITTEE, RE-ISSUED: April 4, 2012 RESPONDENT. BEFORE: THE ADMINISTRATIVE REVIEW BOARD Appearances: For the Complainant: Bishnu S. Baiju; pro se, Elmhurst, New York For the Respondent: Jason E. Burritt, Esq.; Seyfarth Shaw LLP, New York, New York Before: Paul M. Igasaki, Chief Administrative Appeals Judge; E. Cooper Brown, Deputy Chief Administrative Appeals Judge; and Joanne Royce, Administrative Appeals Judge FINAL DECISION AND ORDER This case arises under the Immigration and Nationality Act, as amended (INA or the Act). 1 Pursuant to a complaint filed by Bishnu S. Baiju, the Department of Labor s Wage and Hour Division (WHD) initiated an investigation under the INA to determine whether Fifth 1 8 U.S.C.A (West 1999 & Thomson Reuters Supp. 2011). The INA s implementing regulations are found at 20 C.F.R. Part 655, Subparts H and I (2011). USDOL/OALJ REPORTER PAGE 1 AILA-DC 2012 FALL CONF. 630

323 Avenue Committee (FAC) was in compliance with the INA s H-1B visa process. Wage and Hour issued a Determination Letter on September 16, 2009, charging FAC with a violation of the Act, and calculated back wages due Baiju in the amount of $ Disagreeing with the Administrator s determination of the back wage amount, Baiju requested a hearing before a Department of Labor (DOL) Administrative Law Judge (ALJ). In a Decision and Order issued March 8, 2010, the presiding ALJ held that FAC was liable for the payment of back wages as determined by the Administrator, minus lawful deductions, plus prejudgment and post-judgment interest. Baiju timely appealed to the Administrative Review Board (ARB or Board). For the following reasons, we affirm the ALJ s Decision and Order, with modification. BACKGROUND 2 The INA permits an employer to hire non-immigrant workers in specialty occupations to work in the United States for prescribed periods of time. 3 These workers are commonly referred to as H-1B nonimmigrants. Specialty occupations require specialized knowledge and a degree in the relevant specialty. 4 An employer seeking to hire an H-1B worker must obtain DOL certification by filing a Labor Condition Application (LCA). 5 The LCA stipulates the wage levels and working conditions that the employer guarantees for the H-1B nonimmigrant. 6 After securing the certification, and upon approval by the Department of Homeland Security s United States Citizenship and Immigration Services (USCIS), the Department of State issues H-1B visas to these workers. 7 FAC hired Baiju as an accountant on a temporary basis. At the same time, Baiju also worked for Leap, Inc., also known as Brooklyn Workforce Innovations (BWI), a wholly controlled affiliate of FAC. Michelle de La Uz became the Executive Director for FAC in January In September 2006, de La Uz filed an H-1B visa petition for Baiju as well as a separate permanent labor certification application for him. Based on its own survey, FAC determined the prevailing wage for listing on the LCA for the H-1B visa petition at $45, Nevertheless, FAC paid Baiju at an actual wage rate of 2 Unless otherwise indicated, the factual statements contained in the Background Statement are excerpted from the ALJ s Decision and Order (D. & O.) at pages U.S.C.A. 1101(a)(15)(H)(i)(b); 20 C.F.R U.S.C.A. 1184(i)(1). 8 U.S.C.A. 1182(n)(1); 20 C.F.R U.S.C.A. 1182(n)(1); 20 C.F.R , C.F.R (a), (b). USDOL/OALJ REPORTER PAGE 2 AILA-DC 2012 FALL CONF. 631

324 several thousand dollars more than the prevailing wage listed on the LCA. In September 2006 FAC paid Baiju a cost of living increase of $2, Baiju received another cost of living increase of $2, in When Baiju s employment with FAC ended, he was making $50, per year. As a part of the application for permanent labor certification, FAC had to request a wage determination from the State of New York. On November 9, 2006, the State issued its wage determination in conjunction with the permanent labor certification application. It listed a prevailing rate of $34.89 per hour or the equivalent of $63, per year. FAC s permanent labor certification petition was not approved while FAC employed Baiju. On October 30, 2007, de La Uz sent an to FAC s attorney referring to the fact that FAC was not paying Baiju the hourly rate indicated by the New York wage determination. The attorney responded that FAC was not obligated to pay the prevailing wage listed on the New York wage determination until the permanent labor certification application was approved. FAC provided Baiju with a copy of the correspondence from FAC s attorney on November 8, On February 6 or 7, 2008, Baiju complained to de La Uz and other FAC officials that he believed he was not being paid the proper prevailing wage. He had complained about this numerous times in the past. 8 On February 7, de La Uz met with Baiju, at which time she explained to Baiju that the prevailing wage listed by the State of New York would not apply until his permanent labor certification application was approved. Other employees complained to de La Uz that Baiju was disrupting their work by raising his voice and behaving aggressively. 9 She also heard that he had approached a member of the Board of Directors about the wage dispute matter, rather than following de La Uz s instructions. When de La Uz met with Baiju on February 7, 2008, Baiju remained intractable on the issue. He indicated that he refused to work unless he was paid at the rate listed on the New York wage determination. De La Uz asked Baiju if he was refusing to perform his duties under his LCA job description, to which Baiju responded that he was unwilling to perform the duties and that he recognized that it was a breach of what he had said he was going to do. De La Uz suggested that Baiju seek employment elsewhere if he was unhappy with his wages, and informed Baiju that if he was not willing to perform his duties they would have to terminate his employment. By letter dated February 12, 2008, FAC informed Baiju that his employment was terminated effective February 7, Baiju also complained several times that he deserved to be paid more because he believed he was working for two separate entities; he also complained that he was due compensatory time. D. & O. at 8. 9 The ALJ found support for de La Uz s version of the events that led to the termination of Baiju s employment. D. & O. at 20. USDOL/OALJ REPORTER PAGE 3 AILA-DC 2012 FALL CONF. 632

325 On March 11, 2008, FAC offered to reimburse Baiju for the cost of transportation to his country of origin. On the same day, FAC wrote to USCIS to advise that it had terminated Baiju s employment. PROCEEDINGS BELOW In January 2009, WHD initiated an investigation to determine whether FAC had complied with the Act with respect to Baiju. D. & O. at 2. As a result of its investigation, WHD rejected FAC s source for its reported wage determination and requested ETA to issue a wage determination. Id. at 12. There was no timely objection filed through the Employment Service complaint system that challenged ETA s wage determination. Id. at 14. WHD issued a determination letter that advised FAC that it had failed to pay wages as required and ordered FAC to pay Baiju back wages in the amount of $ Id. Baiju disagreed with the Administrator s determination and requested a hearing before a Department of Labor ALJ, which took place on November 17, D. & O. at 2. In her Decision and Order, the ALJ held that: (1) FAC was not required to pay Baiju in compliance with the wage determination issued by the New York State Department of Labor; (2) WHD s request for a wage determination from ETA was warranted; (3) FAC was liable to pay the back wages WHD computed minus lawful deductions but with prejudgment compound interest and post-judgment interest; and (4) FAC did not discriminate or retaliate against Baiju in violation of 20 C.F.R (a). D. & O. at The ALJ also addressed several issues that Baiju raised after the hearing including: (1) Baiju s motion to exclude FAC s brief; (2) Baiju s suggestion that the ALJ was prejudiced against Baiju because one of FAC s attorneys was the ALJ s husband s college roommate and had met the ALJ before; (3) Baiju s objection to FAC s late submission of documents; (4) Baiju s request for reconsideration of the ALJ s order dismissing Michelle de La Uz; and (5) Baiju s objection to the ALJ s exclusion of evidence involving hearsay. The ALJ overruled Baiju s objection about FAC s brief because she found that good cause existed to allow FAC s evidence and briefs to be admitted into the record. The ALJ denied Baiju s request that the ALJ recuse herself from presiding because her association with the attorney that Baiju objected to was too remote in time and character, because Baiju stated that he did not object to her hearing the case when he became aware of the association, and because the attorney was not a party to the case. The ALJ also overruled Baiju s objection to the late submission of documents because she found good cause to waive the time frames for the submission of evidence. The ALJ affirmed her decision to dismiss Michelle de La Uz as a Respondent in this matter. Finally, the ALJ reaffirmed her ruling excluding evidence involving hearsay. D. & O. at 3-6. USDOL/OALJ REPORTER PAGE 4 AILA-DC 2012 FALL CONF. 633

326 JURISDICTION AND STANDARD OF REVIEW The Administrative Review Board has jurisdiction to review the ALJ s decision pursuant to 8 U.S.C.A. 1182(n)(2) and 20 C.F.R Under the Administrative Procedure Act, the ARB, as the Secretary of Labor s designee, acts with all the powers [the Secretary] would have in making the initial decision The ARB has plenary power to review an ALJ s factual and legal conclusions de novo. 13 The ARB reviews an ALJ s determinations on procedural issues, evidentiary rulings, and sanctions under an abuse of discretion standard. 14 DISCUSSION The issues on appeal are outlined in the ARB s Notice of Intent to Review (May 5, 2010), and include: (1) whether the ALJ properly dismissed individually named Respondent Michelle de La Uz as a party to the case; (2) whether the ALJ properly denied the Prosecuting Party s post-hearing objection to her consideration of the case; (3) whether the ALJ properly found that the Wage and Hour Division (WHD) properly requested a wage rate from the Employment Training Administration (ETA) when it determined that the Respondent had failed to properly document the wage rate it reported on the Prosecuting Party s Labor Condition Application or should the wage rate have been determined by reference to the rate calculated by the State of New York for the Prosecuting Party s permanent resident visa; (4) if the ALJ properly found that the WHD properly relied on the ETA wage rate, whether the ALJ properly upheld the WHD s back wage calculation of $ plus post-judgment interest until satisfaction of the liability; (5) whether the ALJ properly found that the Respondent effected a bona fide termination of the Prosecuting Party s employment on March 11, 2008, when the Respondent notified the Prosecuting Party and the United States Citizenship and Immigrations Services of the termination of the Prosecuting Party s employment and offered to reimburse him for the cost of transportation to his country of origin; and (6) whether the ALJ properly found that the Prosecuting Party failed to carry his burden of establishing that the Respondent discriminated or retaliated against him in violation of 20 C.F.R (a), which implements the H-1B program s employee protection provision. 11 See Secretary s Order No , 75 Fed. Reg. 3, (Jan. 15, 2010) (delegating to the ARB the Secretary s authority to review cases arising under, inter alia, the INA) U.S.C.A. 557(b) (West 1996). 13 Yano Enters., Inc. v. Administrator, ARB No , ALJ No LCA-001, slip op. at 3 (ARB Sept. 26, 2001); Administrator v. Jackson, ARB No , ALJ No LCA-004, slip op. at 3 (ARB Apr. 30, 2001). 14 See, e.g., Mao v. Nasser, ARB No , ALJ No LCA-036, slip op. at 12 (ARB Nov. 26, 2008); Chelladurai v. Infinite Solutions, Inc., ARB No , ALJ No LCA-004, slip op. at 9 (ARB Apr. 26, 2006). USDOL/OALJ REPORTER PAGE 5 AILA-DC 2012 FALL CONF. 634

327 We address these issues in the order in which they are identified, beginning by summarizing any objections to the ALJ s decisions and then the ALJ s decisions on the issues. ALJ Dismissal of Michelle de La Uz as a Party Baiju challenges the ALJ s decision to dismiss Michelle de La Uz as a party to this action. Baiju argues that de La Uz should be personally liable because she is the Executive Director and co-chair of FAC s board of directors. Comp. Br. at 11. He argues that she has full domination over the affairs of the organization. Id. In a separate order dated December 23, 2009, the ALJ dismissed de La Uz as a party. D. & O. at 6. In the December 23, 2009 order, the ALJ explained that de La Uz did not act as an employer under the Act, but merely acted in her capacity as an employee of FAC. Order at 3. The ALJ additionally found that de La Uz did not have complete domination of FAC, which is what is generally required to pierce the corporate veil under New York law. Order at 4. After the ALJ issued the order, Baiju moved for reconsideration. The ALJ reaffirmed the dismissal in her decision, noting that while de La Uz held a managerial position with Respondent and had authority to hire, fire, and set wage rates, she did not exercise dominion over the company so as to make her personally liable for decisions she made in her capacity as Respondent s employee. D. & O. at 6. On this issue, the evidence of record supports the ALJ s findings, and the ALJ correctly applied the law. Under the Act, the corporate veil can be pierced when it is appropriate. In DOL v. Kutty 15 the ARB upheld an ALJ s decision that relied upon Tennessee law to conclude that it was appropriate to pierce the corporate veil. 16 The alleged protected activity and adverse action in this case occurred in New York, and therefore, the law of that state applies to this question. 17 We agree with the ALJ that de La Uz s managerial role with authority to hire, fire, and set wage rates does not make her personally liable and is not sufficient to show that she exercised complete control over the corporation. Accordingly, we affirm the ALJ s dismissal of de La Uz. 15 U.S. Dep t of Labor v. Kutty, ARB No , ALJ Nos LCA-010 to -025 (ARB May 31, 2005). 16 Id. at Id. at 17 n.14. See Carter-Jones Lumber Co. v. LTV Steel Co., 237 F.3d 745, 746 n.1, 750 (6th Cir. 2001) (applied state common law to pierce corporate veil in claim arising under the liability provisions of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C.A et seq. (West 1995)). USDOL/OALJ REPORTER PAGE 6 AILA-DC 2012 FALL CONF. 635

328 Baiju s Post-Hearing Objection re Recusal Baiju challenges on appeal the ALJ s ruling that she hear the matter rather than recuse herself. Baiju implied in his petition for review that the ALJ protected FAC because they were clients of her husband s friend, and that the ALJ in other ways was hasty, unfair, and biased, thus denying him a fair hearing. The ALJ overruled any objections Baiju had to her participation in the litigation because her association with the attorney that Baiju objected to was remote in time and character, because Baiju stated that he did not object to her hearing the case when he became aware of the association, and because the attorney was not a party to the case. D. & O. at 5. The ARB reviews an ALJ s determinations on procedural issues, evidentiary rulings, and sanctions under an abuse of discretion standard, i.e., whether, in ruling as he did, the ALJ abused the discretion vested in him to preside over the proceedings. 18 The ALJ did not abuse her discretion when she decided to continue to adjudicate the case given the tenuous nature of her association with the Respondent s counsel and that Baiju did not object to the association when the ALJ offered him the opportunity to do so. ETA Wage Rate Concerning the merits of the ALJ s decision, Baiju challenges the ALJ s determination that FAC did not have to pay him the wage rate provided by the State of New York. Baiju argues that FAC was obligated to pay him the State of New York wage rate because his permanent labor certification application and his H-1B petition were both submitted in regards to the same position. Comp. Br. at 10, The ALJ found that FAC determined the prevailing wage it reported on the LCA in support of Baiju s H-1B visa petition by conducting a survey. D. & O. at 12. The ALJ further found that when WHD investigated FAC s compliance with the H-1B regulations, it concluded that the documentation supporting the survey did not meet the criteria of 20 C.F.R D. & O. at 14. The ALJ found that this investigative finding (of insufficient documentation) supported WHD s request to ETA for a wage determination and noted that because Baiju did not challenge the ETA s wage determination, it was deemed to be final. See 20 C.F.R (c). The ALJ noted the regulation s provision that [u]nder no circumstances shall the administrative law judge determine the validity of the wage determination or require submission into evidence or disclosure of source data or the names of establishments contacted in developing the survey which is the basis for the prevailing wage determination. D. & O. at 14. In regards to the State of New York wage determination, the ALJ explained that it bore no relationship to Baiju s wages 18 Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc., ARB No , ALJ No LCA-026, slip op. at 5 (ARB Jan. 31, 2011) (citing Mao, ARB No , slip op. at 12; Chelladurai, ARB No , slip op. at 9).. USDOL/OALJ REPORTER PAGE 7 AILA-DC 2012 FALL CONF. 636

329 under his H-1B visa, because it was issued in conjunction with his distinct and separate petition for permanent labor certification. D. & O. at 14. The evidence of record supports the ALJ s findings and the ALJ correctly applied the law on the issue of the ETA wage rate. The H-1B regulations provide that [w]here the documentation is either nonexistent or is insufficient to determine the prevailing wage... the Administrator may contact ETA, which shall provide the Administrator with a prevailing wage determination, which the Administrator shall use as the basis for determining violations and for computing back wages, if such wages are found to be owed. 20 C.F.R (d)(1). In this case, WHD found that the documentation to support the prevailing wage listed on Baiju s LCA was insufficient. Thus, it contacted ETA for a wage determination, as provided for in the regulations. The ALJ found that this request was warranted because WHD found the documentation lacking and none of the parties objected to the ETA s wage determination, making it final. We agree and accordingly affirm the ALJ s decision as to the appropriate wage rate. Back Wage Calculation Baiju also challenges the ALJ s award of back wages in the amount of $ Baiju argues that FAC must pay him $185, plus interest and if not that amount, then he is at least due $6, for more than a month s salary and benefits. Comp. Br. at 17-18; see Pet. for Rev. at 13, 16. The ALJ ordered that FAC pay Baiju back wages in the amount WHD determined $ minus lawful deductions. D. & O. at 17. The ALJ also ordered that FAC pay Baiju prejudgment compound interest and any post-judgment interest that accrues. Id. The ALJ accorded substantial weight to WHD s calculation of back wages due, because the calculations covered the duration of Baiju s employment with FAC. D. & O. at 16. The evidence of record supports the ALJ s findings and she correctly applied the law. Based on the regulations, WHD properly used the ETA s wage determination to compute back wages and the ALJ properly accepted the ETA s wage determination as final. The H-1B regulations provide that when the Administrator contacts the ETA for a wage determination, the ETA shall provide the Administrator with a prevailing wage determination, which the Administrator shall use as the basis for determining violations and for computing back wages, if such wages are found to be owed. 20 C.F.R (d)(1). An ALJ must not determine the validity of the wage determination and shall accept as final and accurate the wage determination obtained from ETA C.F.R (c). The ALJ s conclusions on this matter are affirmed. Bona Fide Termination Baiju also challenges on appeal the ALJ s decision that FAC effected a bona fide termination on February 7, Baiju argues that FAC did not effect a bona fide termination because FAC did not present him with revocation letters from USCIS and did not provide post USDOL/OALJ REPORTER PAGE 8 AILA-DC 2012 FALL CONF. 637

330 office tracking information. Pet. for Rev. at 2, 4, 16. He maintained that the evidence supporting bona fide termination is fraudulent. Pet. for Rev. at 2. He also stated that FAC did not tender him transportation to Nepal. Pet. for Rev. at 16. The ALJ found that FAC terminated Baiju s employment on February 7, D. & O. at 15. The ALJ also found that on March 11, 2008, FAC affirmed Baiju s discharge, offered to reimburse Baiju for the cost of his transportation to his country of origin, and notified USCIS that FAC terminated Baiju s employment. D. & O. at 15. The ALJ found that FAC fulfilled the regulatory requirements for effecting a bona fide termination of Baiju s employment and found no substance to Baiju s allegations that the USCIS letter was not valid or was fraudulent. D. & O. at 15. The evidence of record supports the ALJ s findings and the ALJ correctly applied the law. The ALJ properly concluded that FAC complied with all of the requirements for a bona fide termination of an H-1B employment effective March 11, The H-1B regulations provide that an employer must effect a bona fide termination of the employment relationship to relieve itself of its obligation to pay the required wage. 19 To effect a bona fide termination, an employer must (1) give notice of the termination to the H-1B worker, (2) give notice to the Department of Homeland Security (USCIS), and (3) under certain circumstances, provide the H- 1B non-immigrant with payment for transportation home. 20 FAC gave Baiju notice of the termination on February 7, FAC gave notice to USCIS on March 11, 2008, that it had terminated Baiju s employment. 21 Finally, FAC offered return transportation to Baiju. D. & O. at 15. Although Baiju apparently did not accept the offer of the cost of return transportation to his home country, this does not affect the fact that FAC made the offer of payment of the cost of return transportation to complete the bona fide termination. Retaliation Claim Finally, Baiju challenges the ALJ s determination that FAC did not retaliate against him in violation of the INA. Baiju argues that FAC retaliated against him for asking when he was going to be paid the higher of the actual or prevailing wage by filing arbitrary misconduct C.F.R (c)(7)(ii). 20 Gupta v. Jain Software Consulting, Inc., ARB No , ALJ No LCA-039, slip op. at 3 (ARB Mar. 30, 2007). 21 Baiju appears to argue that for there to be a bona fide termination, USCIS must revoke approval of the H-1B visa after the employer notifies it that the employment relationship was terminated. Comp. Br. at However, notice to USCIS is all that is required to fulfill the notice requirement for effecting a bona fide termination; there is no requirement that USCIS cancel the LCA for a termination to be bona fide. 20 C.F.R (c)(7)(ii); see Gupta, ARB No , slip op. at 5-6; Amtel Group of Florida, Inc., v. Yongmahapakorn, ARB No , ALJ No LCA-006, slip op. at 11 (ARB Sept. 29, 2006). USDOL/OALJ REPORTER PAGE 9 AILA-DC 2012 FALL CONF. 638

331 charges, threatening him, and harassing him. Comp. Br. at 12. He states that FAC s termination letter contained an arbitrary misconduct charge because he did not do Leap Inc., work. Comp. Br. at 13. He also said they reported that Baiju engaged in misconduct to the New York State Department of Labor Unemployment Benefits Board. A New York DOL ALJ found that Baiju did not refuse to continue working for the employer herein, and that claimant s expression of his salary and work assignment concerns did not rise to the level of misconduct. Comp. Br. at 14. The ALJ found that Baiju established a prima facie case of retaliation for purported protected activity because he showed that he complained to officials at FAC that he believed he was not being paid the proper prevailing wage. D. & O. at He found that temporal proximity raised the inference of causation. D. & O. at 19. However, the ALJ concluded that it was not reasonable for Baiju to believe that he was entitled to the prevailing wage that he insisted, and continues to insist, was due because FAC explained to Baiju that the State of New York wage determination related to his permanent labor certification application, not to his H-1B work. Id. Baiju raised the issue several times, and FAC told him that the New York wage determination rate of pay would not go into effect until the certification was granted. D. & O. at 19. The ALJ found that despite the content of Baiju s complaint on February 6, 2008, Baiju s subjective opinions on the applicable wage rate were not objectively reasonable, and that he therefore did not engage in protected activity. Id. at 20. The ALJ went on to find that FAC articulated a legitimate reason for terminating Baiju s employment, which consisted of Baiju s refusal to accept that he was not entitled to the rate of wages that the State of New York had issued. D. & O. at 20. The ALJ also found that de La Uz s description of the events leading to the termination were credible and that at the hearing and in general, Baiju seemed reluctant to follow instructions or accept ALJ rulings that were opposite his position. Id. The ALJ next found that Baiju failed to prove that FAC s legitimate reasons for termination were a pretext for discrimination. D. & O. at 21. Baiju had complained many times over a long period that he was entitled to be paid at the State of New York rate and no adverse action was taken against him until February 7, Id. The ALJ believed de La Uz s explanation that she discharged Baiju because he failed to follow instructions, and he refused to perform assigned work. Id. The ALJ also found it significant that FAC continued to sponsor Baiju s permanent labor visa in spite of his demands for more money and that de La Uz expected that she would pay Baiju the rate of the State of New York wage determination after the application was approved. Id. Additionally, the ALJ discussed the finding of a New York ALJ that Baiju was discharged because he complained about his rate of pay. D. & O. at 21. The ALJ specifically made that finding because the employer did not produce any first hand testimony about Baiju s employment termination. Id. The ALJ noted that in contrast to the proceedings before the New York ALJ, in the proceeding before her, both of the parties produced testimony about the termination. Id. The ALJ concluded based on that and the difference in the weight of the USDOL/OALJ REPORTER PAGE 10 AILA-DC 2012 FALL CONF. 639

332 evidence concerning the prevailing wage between the two proceedings, that the determination by the New York ALJ had little probative or persuasive value to her adjudication. Id. Therefore, the ALJ concluded that the preponderance of the evidence supported a finding that FAC did not discharge Baiju in retaliation for protected activity. D. & O. at 21. The evidence of record supports the ALJ s findings of fact, but we disagree with the ALJ on her application of the law regarding protected activity. Unlike the ALJ, we find that Baiju engaged in protected activity. Employers of H-1B workers may not discriminate against the H- 1B worker because he or she complains about suspected violations of H-1B program requirements. Baiju complained that FAC was not paying him what he was entitled to be paid under the H-1B program. Therefore he engaged in protected activity. We find that Baiju s belief that he was entitled to more money was reasonable given that WHD did find a violation upon investigation, even though he was not entitled to the wage listed on the New York wage determination. Our finding of protected activity does not change the result in this case however, because we agree with the ALJ that Baiju failed to show that FAC took adverse action against Baiju because of his protected activity. The ALJ ultimately concluded that de La Uz terminated Baiju s employment for her stated reason that he failed to follow instructions and he failed to perform work. D. & O. at 21. The ALJ also concluded that the preponderance of the evidence supported a finding that FAC did not discharge Baiju because he engaged in protected activity. Id. We agree. While Baiju s complaints about his pay rate to FAC and to WHD were protected, his refusal to work was not. Baiju had complained many times about his pay rate, and FAC had continued to employ him and to pursue the permanent labor application, which if approved, would have required FAC to pay Baiju the demanded amount. FAC was willing to pay this amount once the permanent labor application was approved. We affirm the ALJ s decision that FAC did not terminate Baiju s employment because he engaged in protected activity. CONCLUSION For the foregoing reasons, we conclude that (1) the ALJ properly dismissed Michelle de La Uz as a party; (2) the ALJ properly denied Baiju s post-hearing objection to her consideration of the case; (3) the ALJ properly found that WHD properly requested a wage rate from ETA; (4) the ALJ properly upheld WHD s back wage calculation minus withholdings and plus interest; (5) the ALJ properly found that FAC effected a bona fide termination of Baiju s employment on March 11, 2008; and (6) although Baiju engaged in protected activity, the ALJ properly found that Baiju failed to carry his burden of establishing that FAC discriminated against him or retaliated against him because he engaged in protected activity. ORDER USDOL/OALJ REPORTER PAGE 11 AILA-DC 2012 FALL CONF. 640

333 The ALJ s Decision and Order is AFFIRMED, and Baiju s complaint is DISMISSED. SO ORDERED. E. COOPER BROWN Deputy Chief Administrative Appeals Judge PAUL M. IGASAKI Chief Administrative Appeals Judge JOANNE ROYCE Administrative Appeals Judge USDOL/OALJ REPORTER PAGE 12 AILA-DC 2012 FALL CONF. 641

334 USCIS - Avoiding Common Errors Page 1 of 2 11/6/2012 Avoiding Common Errors Common Mistakes Every Employer Needs to Avoid Employers should review Forms I-9 carefully immediately after completion to make sure they don t make these common mistakes. In Section 1, common mistakes made by the employee include: No employee printed name, maiden name (if applicable), address or date of birth. No A number for an employee who selects A Lawful Permanent Resident. No A number or admission number for an employee who selects An alien authorized to work until. No employee signature or attestation date. Not completing Section 1 by the time the employee began work for pay. Not checking a box to indicate whether the employee is attesting to be a citizen or national of the United States, a lawful permanent resident, or an alien authorized to work until a specified date or checking multiple boxes attesting to more than one of the above. No preparer and/or translator name, address or signature (if applicable). No date in the preparer and/or translator certification box (if applicable). In Section 2, common mistakes made by the employer include: No acceptable List A document or acceptable List B and List C documents recorded on the form. No document title, issuing authority, number(s) or expiration date for the documentation presented. No business title, name or address. No date for when employment began. No employer signature, printed name or attestation date. Not completing Section 2 by the third business day after the date the employee started work for pay, or, if the employee is hired for three business days or less, at the time the employee started work for pay. In Section 3, common mistakes made by the employer include: No document title, number or expiration date for the acceptable documentation presented. No date of rehire, if applicable. No new name, if applicable. No employer signature or date. AILA-DC 2012 FALL CONF. 642

335 USCIS - Avoiding Common Errors Page 2 of 2 11/6/2012 Completing section 3 after the employee s work authorization expired. General Tips for Completing Forms I-9 When completing Form I-9, employers should ensure that: The information on the form is clear and can be read. The date entered in Section 2 as the date the employee began work for pay matches the date in the payroll records. Highlighting marks, hole punches and staples do not interfere with an authorized official s ability to read the information on the form. Copies of the documentation retained with Form I-9 are legible, if copies of documentation are made. Abbreviations will be understood if the forms are inspected. Unless an abbreviation is widely known, don t use it. All applicable sections of the form are completed. The current version of the Form I-9 is used. The English version of the form is completed, unless the form is being filled in Puerto Rico. (They can complete the Spanish version.) E-Verify improves the integrity and accuracy of the employment eligibility verification process and may help employers recognize some common mistakes when completing the employment verification process. Last updated: 05/13/2011 Plug-ins AILA-DC 2012 FALL CONF. 643

336 USCIS - Self Audits Q&As Page 1 of 2 11/6/2012 Self Audits Q&As Q. Does the employer need to fill out a new Form I-9 if the employee signs not in the signature box but right above the signature box? A. No. As long as it is clear that the signature relates to the attestation ( I attest, under penalty of perjury ), there is no need to complete a new Form I-9 or correct the placement of the signature Q. If an employer finds a mistake on previously completed Forms I-9, how should the employer correct the mistake? A. The employer may draw a line through inaccurate information, write the correct information on Form I-9, initial and date of the correction. The employer should also make a note in the file that a self-audit was completed on that date. Q. What should an employer do if an invalid version of Form I-9 was completed for an employee at the time of hire? A. If the wrong version of the Form I-9 was completed when the employee was hired, an employer should try to rectify the error. The best way would be for the employer and employee to complete the current version of Form I-9 and staple the previously completed Form I-9 to the current version. Include an explanation of what happened and sign and date the explanation. If the employer is unable to have the employee and employer complete the current version of Form I-9, the employer could try to rectify the error by: 1. Stapling the outdated, but complete I-9, to the current version and Sign the current Form I-9 version; Include an explanation of why the current version is attached; and Sign and date the explanatio 2. Drafting an explanation of the situation and Attach the explanation to the completed outdated Form I-9; and Sign and date the explanation Last updated:04/27/2012 AILA-DC 2012 FALL CONF. 644

337 USCIS - Self Audits Q&As Page 2 of 2 11/6/2012 Plug-ins AILA-DC 2012 FALL CONF. 645

338 Recent Releases Library Faces of ICE Fact Sheets Federal Register Notices Forms Freedom of Information Act (FOIA) Library Photo of the Week Policies Reports Speeches & Testimonies Top Stories Images and Videos Legal Notices Media Kit Widgets Investigations» Worksite Enforcement Fact Sheet: Worksite Enforcement MAY 23, 2012 U.S. Immigration and Customs Enforcement s (ICE) Homeland Security Investigations (HSI) enforces the law and engages in effective worksite enforcement. This reduces the demand for illegal employment and protects employment opportunities for the nation s lawful workforce. On April 30, 2009, ICE HSI rolled out a revised worksite enforcement strategy. The strategy prioritizes the use of criminal prosecutions against employers that: Utilize unauthorized workers as a business model Mistreat their workers Engage in human smuggling or trafficking Engage in identity and benefit fraud Launder money Participate in other criminal conduct. Investigations involving national security, public safety or those associated with our critical infrastructure and key resources sectors receive top priority. HSI will continue to administratively arrest, and subsequently process for removal, illegal workers that it encounters during worksite enforcement investigations. While HSI continues to prioritize criminal investigations, it now places increased emphasis on compliance and outreach. HSI utilizes all available civil and administrative tools, including Form I-9 inspections, civil fines and debarment. HSI also actively promotes the ICE Mutual Agreement between Government and Employers (IMAGE) outreach program. IMAGE is a voluntary partnership between the government and the private sector, whereby employers receive invaluable training and are provided with additional tools to strengthen the integrity of their workforce and curtail the employment of unauthorized workers. HSI believes utilizing enforcement, compliance and outreach is an effective approach to deter illegal employment and create a culture of compliance. Fiscal Year 2011 Accomplishments HSI made more than 713 criminal arrests tied to worksite enforcement investigations. Of the individuals criminally arrested, 221 were owners, managers, supervisors or human resources employees. They face charges such as harboring or knowingly hiring illegal aliens. The remaining workers who were criminally arrested face charges such as aggravated identity theft and Social Security fraud. HSI served 2,496 Notices of Inspection, which resulted in 385 Final Orders, totaling $10,463, in administrative fines. ICE debarred 212 business and individuals for administrative and criminal violations. HSI conducted 1,946 IMAGE outreach presentations to 14,056 employers. Frequently Asked Questions Print All Expand All Hide All Why is worksite enforcement important? Employment is a primary driving force behind illegal immigration. Many individuals that enter the United States illegally rely on a network of criminal organizations to obtain employment. These organizations are frequently engaged in smuggling ventures, as well as identity and benefit fraud. HSI is committed to targeting these organizations, protecting the nation s critical infrastructure and key resources sectors, and safeguarding employment opportunities for authorized workers. What s the harm of illegal aliens working in the United States? Illegal aliens often turn to criminal activity, including document fraud, Social Security fraud or identify theft to obtain employment. It can take years for identity theft victims to repair the damage. How do businesses and communities suffer? AILA-DC 2012 FALL CONF. 646

339 Responsible employers who conduct their business lawfully are put at an unfair disadvantage when they try to compete with unscrupulous businesses. The unscrupulous businesses may gain a competitive edge by not paying their unauthorized workers prevailing wages and benefits. How does HSI determine which employers to investigate? HSI does not randomly investigate employers. All investigations and arrests are based on specific intelligence obtained from a variety of sources. What types of industries does HSI target? HSI prioritizes investigations involving critical infrastructure and key resources. However, no industry, regardless of size, type or location is exempt from complying with the law or being the subject of an HSI investigation. En Español DHS.gov USA.gov Freedom of Information (FOIA) Privacy & Usage Policy Site Map Contact Us Get Browser Plugins AILA-DC 2012 FALL CONF. 647

340 Recent Releases Library Faces of ICE Fact Sheets Federal Register Notices Forms Freedom of Information Act (FOIA) Library Photo of the Week Policies Reports Speeches & Testimonies Top Stories Images and Videos Legal Notices Media Kit Widgets Investigations» Worksite Enforcement Fact Sheet: Form I-9 Inspection Overview AUGUST 1, 2012 On November 6, 1986, the enactment of the Immigration Reform and Control Act required employers to verify the identity and employment eligibility of their employees and created criminal and civil sanctions for employment related violations. Section 274A(b) of the Immigration and Nationality Act (INA), codified in 8 U.S.C. 1324a (b), requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, C.F.R. 274a.2 designates the Employment Eligibility Verification Form I-9 (Form I-9) as the means of documenting this verification. Employers are required by law to maintain for inspection original Forms I-9 for all current employees. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer. The administrative inspection process is initiated by the service of a Notice of Inspection (NOI) upon an employer compelling the production of Forms I-9. U.S. Immigration and Customs Enforcement (ICE) typically will allow three business days to present the Forms I-9. Often, ICE will request the employer provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses. ICE agents or auditors then conduct an inspection of the Forms I-9 for compliance. When technical or procedural violations are found, pursuant to INA 274A(b)(6)(B) (8U.S.C. 1324a(b)(6)(B)), an employer is given ten business days to make corrections. An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers under INA 274A(a)(1)(a) or (a)(2) (8 U.S.C. 1324a(a)(1)(a) or(a)(2)) will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits. Monetary penalties for knowingly hire and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation,whether the violation involved unauthorized workers, and history of previous violations. ICE will notify the audited party, in writing, of the results of the inspection once completed. The following are the most common notices: Notice of Inspection Results also known as a "compliance letter," used to notify a business that they were found to be in compliance. Notice of Suspect Documents advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error. Notice of Discrepancies advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee witha copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility. Notice of Technical or Procedural Failures identifies technical violations identified during the audit and gives the employer ten business days to correct the forms. After ten business days, uncorrected technical and procedural failures will become substantive violations. Warning Notice issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer Notice of Intent to Fine (NIF) may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations. In instances where a NIF is served, charging documents will be provided specifying the violations committed by the employer. The employer has the opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If the employer takes no action after receiving a NIF, ICE will issue a Final Order. If a hearing is requested, OCAHO assigns the case to an Administrative Law Judge (ALJ), and sendsall parties a copy of a Notice of Hearing and government's complaint, thus setting theadjudicative process in motion. The Notice of Hearing spells out the procedural requirements for answering thecomplaint and the potential consequences of failure to file a timely response. Many OCAHO cases never reach the evidentiary hearing stage because the parties either reach a settlement, subject to the approval of the ALJ, or the ALJ reaches a decision on the merits through dispositive prehearing rulings. Print All Expand All Hide All Determination of Recommended Fine AILA-DC 2012 FALL CONF. 648

341 The cumulative recommended fine set forth in the NIF is determined by adding the amount derived from the Knowing Hire / Continuing to Employ Fine Schedule (plus enhancement or mitigation) with the amount derived from the Substantive / Uncorrected Technical Violations Fine Schedule (plus enhancement or mitigation). Typically, the date of the violation shall be the date ICE conducted the Form I-9 inspection and not the date the Form I-9 was completed by the employer. Penalties for Knowingly Hire / Continuing to Employ Violations Employers determined to have knowingly hire or continuing to employ violations shall be required to cease the unlawful activity and may be fined. The agent or auditor will divide the number of knowing hire and continuing to employ violations by the number of employees for which a Form I-9 should have been prepared to obtain a violation percentage. This percentage provides a base fine amount depending on whether this is a First Tier (1st time violator), Second Tier (2nd time violator), or Third Tier (3rd or subsequent time violator) case. The standard fine amount listed in the table relates to each knowing hire and continuing to employ violation. The range of the three tiers of penalty amounts are as follows: KNOWING HIRE / CONTINUING TO EMPLOY FINE SCHEDULE (FOR VIOLATIONS OCCURRING ON OR AFTER 03/27/2008) STANDARD FINE AMOUNT KNOWING HIRE AND CONTINUING TO EMPLOY VIOLATIONS FIRST TIER $375 $3,200 SECOND TIER $3,200 $6,500 THIRD TIER $4,300 $16,000 0% 9% $375 $3,200 $4,300 10% 19% $845 $3,750 $6,250 20% 29% $1,315 $4,300 $8,200 30% 39% $1,785 $4,850 $10,150 40% 49% $2,255 $5,400 $12,100 50% or more $2,725 $5,950 $14,050 KNOWING HIRE / CONTINUING TO EMPLOY FINE SCHEDULE (FOR VIOLATIONS OCCURRING BETWEEN 09/29/1999 AND 03/27/2008) STANDARD FINE AMOUNT KNOWING HIRE AND CONTINUING TO EMPLOY VIOLATIONS FIRST TIER $275 $2,200 SECOND TIER $2,200 $5,500 THIRD TIER $3,300 $11,000 0% 9% $275 $2,200 $3,300 10% 19% $600 $2,750 $4,600 20% 29% $925 $3,300 $5,900 30% 39% $1,250 $3,850 $7,200 40% 49% $1,575 $4,400 $8,500 50% or more $1,900 $4,950 $9,800 Since the passage of IRCA in 1986, federal civil monetary penalties have been increased on two occasions in 1999 and 2008 pursuant to the Federal Civil Penalties Inflation Act of 1990, as amended by the Debt Collection Improvement Act of These adjustments are designed to account for inflation in the calculation of civil monetary penalties and are determined by a non-discretionary, statutory formula. (See 73 FR (February 26, 2008) Penalties for Substantive and Uncorrected Technical Violations The agent or auditor will divide the number of violations by the number of employees for which a Form I-9 should have been prepared to obtain a violation percentage. This percentage provides a base fine amount depending on whether this is a first offense, second offense, or a third or more offense. The standard fine amount listed in the table relates to each Form I-9 with violations. The range of the three tiers penalty amounts are as follows: SUBSTANTIVE / UNCORRECTED TECHNICAL VIOLATION FINE SCHEDULE STANDARD FINE AMOUNT SUBSTANTIVE VERIFICATION VIOLATIONS 1ST OFFENSE $110 $1100 2ND OFFENSE $110 $1100 3RD OFFENSE + $110 $1100 0% 9% $110 $550 $1,100 AILA-DC 2012 FALL CONF. 649

342 10% 19% $275 $650 $1,100 20% 29% $440 $750 $1,100 30% 39% $605 $850 $1,100 40% 49% $770 $950 $1,100 50% or more $935 $1,100 $1,100 Enhancement Matrix The following matrix will be used to enhance or mitigate the recommended fine contained on the Notice of Intent to Fine. (Id.) ENHANCEMENT MATRIX FACTOR AGGRAVATING MITIGATING NEUTRAL Business size + 5% - 5% +/- 0% Good faith + 5% - 5% +/- 0% Seriousness + 5% - 5% +/- 0% Unauthorized Aliens + 5% - 5% +/- 0% History + 5% - 5% +/- 0% Cumulative Adjustment + 25% - 25% +/- 0% Form I-9 Inspection Process En Español DHS.gov USA.gov Freedom of Information (FOIA) Privacy & Usage Policy Site Map Contact Us Get Browser Plugins AILA-DC 2012 FALL CONF. 650

343 IMAGE Benefits FAQs IMAGE Best Employment Practices Members Partners Videos IMAGE Forum Presentations Request Information IMAGE Self-Assessment Questionnaire (Application) IMAGE Flyer IMAGE Brochure USCIS Form I-9 & E-Verify Webinars E-Verify Connection Newsletter Investigations» IMAGE IMAGE Your Workforce Compliance Partner Undocumented workers secure jobs through fraudulent means such as presenting false documents, completing fraudulent benefit applications and stealing someone s identity. To combat unlawful employment and reduce vulnerabilities that help illegal aliens gain such employment, ICE announced the Mutual Agreement between Government and Employers (IMAGE) program in July This program assists employers in targeted sectors develop a more secure and stable workforce. It also enhances fraudulent document awareness through education and training. IMAGE Certification and Program ICE has streamlined the IMAGE certification process. IMAGE now offers a formal membership certification program that focuses on exceptional employers that have the ability to effect change within their industry or region. These employers also serve as an example and role model in the business community while highlighting the importance and viability of immigration compliance. Program participants will be deemed IMAGE certified upon enrollment and completion of IMAGE membership requirements. Employer feedback on the IMAGE program and industry participation in IMAGE will serve to guide DHS in shaping future worksite enforcement policy. IMAGE Forum and Training Series Becoming an IMAGE (ICE Mutual Agreement between Government and Employers) member is now easier than ever. This training consists of Form I-9 training, USCIS E-Verify updates, Office of Special Counsel training and fraudulent document detection training. ICE revamped IMAGE, simplifying program requirements and the participation process. If you're an employer, join IMAGE for a series of forums across the country. Upcoming forums will be held in the following cities: REGISTER NOW San Juan, PR March 7 By voluntarily participating in the IMAGE program, companies can reduce unauthorized employment and the use of fraudulent identity documents. As part of IMAGE, ICE and U.S. Citizenship and Immigration Services (USCIS) will provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification program. Members will also learn about the importance of avoiding discrimination in violation of the Immigration and Nationality Act s anti-discrimination provision 274B.8 U.S.C. 1324b. Employers seeking certification in IMAGE must agree to: Complete the IMAGE Self-Assessment Questionnaire (Application) Enroll in the E-Verify program within 60 days Establish a written hiring and employment eligibility verification policy that includes an internal Form I-9 audit at least once a year Submit to a Form I-9 Inspection Review and sign an official IMAGE partnership agreement with ICE Upon enrollment and commitment to DHS' best employment practices, program participants will be deemed "IMAGE Certified" a distinction DHS believes will become an industry standard. The results of the IMAGE program will guide DHS in shaping future worksite enforcement policy and legislation. IMAGE members are required to participate in E-Verify, an Internet-based system that compares information from an employee's Form I-9, Employment Eligibility Verification, to data from U.S Department of Homeland Security and Social Security Administration records to confirm employment eligibility. For more information about the Form I-9 visit I-9 Central, a website dedicated to making guidance more accessible and user-friendly. The site provides employees and employers with one online location to keep them up to date with the information needed to properly complete Form I-9. The Office of Special Counsel for Immigration-Related Unfair Employment Practices enforces the anti-discrimination provision of the Immigration and Nationality Act 274B, 8 U.S.C. 1324b. This statute prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual's national origin or citizenship status. The statute also prohibits discrimination during the employment eligibility verification (Form I-9 and E-Verify) process (document abuse), and retaliation or intimidation. For more information visit Trade Association Certification Trade associations can become "endorsee" partners by signing an endorsement agreement stating that they support and highly recommend the use of the IMAGE "Best Employment Practices" by their members. The above-mentioned process for business entities is not required for association partnerships. For more information on the IMAGE program, please visit the IMAGE FAQ page. You may request additional information via the Information Request Form. AILA-DC 2012 FALL CONF. 651

344 En Español DHS.gov USA.gov Freedom of Information (FOIA) Privacy & Usage Policy Site Map Contact Us Get Browser Plugins AILA-DC 2012 FALL CONF. 652

345 Printer Friendly Federal law requires every employer and agricultural recruiter/referrer-for-a-fee hiring an individual for employment in the United States to verify his or her identity and employment authorization through completion of Form I-9, Employment Eligibility Verification. These USCIS Web pages on Form I-9 will help you learn more about: This page can be found at: AILA-DC 2012 FALL CONF. 653

346 TRACK 1 - AFTERNOON - FAMILY BASED IMMIGRATION: WAIVERS: MATERIALS AILA-DC 2012 FALL CONF. 654

347 An Overview of the Proposed Stateside Provisional Waiver Program by Elizabeth Kohler Maya 1 Stateside Provisional Waiver Program: Many individuals who would otherwise be eligible for Adjustment of Status are impeded by the accrual of unlawful presence and the associated bars from doing so. Because of the expense and trauma of a prolonged separation from family and the uncertainty as to the likelihood of obtaining the required waiver, many individuals with strong cases choose not to apply. Upcoming changes in the law will make this process less daunting and traumatic, enabling more individuals to obtain permanent residence. I. Unlawful Presence as a Ground of Inadmissibility The Three and Ten Year Bars Individuals seeking admission to the United States, either as non-immigrants or immigrants, must demonstrate that they are eligible for the classification sought. See, e.g.. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993). Additionally, such individuals must also show that none of the statutory grounds of inadmissibility set forth in Section 212(a)(2) of the Immigration and Nationality Act (INA) apply to them; or if such grounds apply, the individual must demonstrate eligibility for a waiver if available. Departure from the US after accrual of more than 180 days of unlawful presence constitutes a ground of inadmissibility under the INA. See INA 212(a)(9)(B)(i). For periods of unlawful presence of more than 180 consecutive days but less than a year, a departure will trigger a three year bar to inadmissibility. See INA 212(a)(9)(B)(i)(I). Departing after more than one year of unlawful presence will lead to a ten year bar. See INA 212(a)(9)(B)(i)(II). Unlawful presence is time spent in the US after entering without a visa or after the expiration of the individual s authorized stay. See INA 212(a)(9)(B)(ii). For most of those who enter with a valid non-immigrant visa, the unlawful presence begins after the date that is written by the Customs and Border Patrol official notes on the entry stamp upon inspection and admission (currently this is done on I-94 card which are soon to become obsolete). Students and certain other non-immigrant visa holders whose stay is authorized for the duration of status (usually indicated by a D/S annotation on entry stamp) do not begin accruing unlawful presence until they are officially informed by a USCIS official or an immigration judge that are no longer in valid status. [ See, e.g., Adjudicator s Field Manual at (b)(1)(E)]. The same rule applies to Canadians. See Advisory Opinion, DOC INA 212(a)(9)(B) & Canadians [undated], reprinted in 76 No. 41 Interpreter Releases (Oct 25, 1999). Several statutory exceptions to accrual of unlawful presence exist for categories such as minors, battered spouses, family unity beneficiaries and good faith applicants for benefits including asylum and adjustment of status. See INA 212(a)(9)(B)(iii)-(iv). 1 Elizabeth Kohler Maya is a partner of Bromberg, Kohler Maya & Maschler, PLLC. She is a member of the Virginia State Bar, the U.S. Supreme Court, the American Immigration Lawyers Association and the National Immigration Project. Elizabeth is a 2002 magna cum laude graduate of the George Mason University School of Law in Arlington, Virginia. AILA-DC 2012 FALL CONF. 655

348 II. Waivers of Inadmissibility Eligibility Requirements Individuals who are subject to either the three or ten year bars for unlawful presence may be eligible for a waiver if they can demonstrate that their inability to return or remain in the US would cause their US citizen or lawful permanent resident spouse or parent extreme hardship. See INA 212(a)(9)(B)(v). It is not necessary that the qualifying relative experiencing the extreme hardship be the petitioner as well. In evaluating requests for waivers based on extreme hardship, the Board of Immigration Appeals has held that extreme hardship is not a definable term of fixed and inflexible meaning. Matter of Chumpitazi, 16 I. & N. Dec. 629 (BIA 1978). Matters involving extreme hardship are instead evaluated on a case-by-case basis, considering the facts and elements of each claim. The Board has articulated various factors to consider in cases involving extreme hardship: [T]he presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). For more information on the extreme hardship standard and types of evidence see Effective Strategies for Presenting Extreme Hardship Arguments for Waivers, by Lisa Johnson-Firth, Esq., and An Overview of I- 601 Waivers and Extreme Hardship, by Laurel Scott, Esq., State Bar of Texas (2012, revised). III. Current Application Process and Its Shortcomings Under the current application process, an individual who is the beneficiary of an approved visa petition with a current priority date who is not eligible to adjust status in the United States must return to the home country to apply for an immigrant visa through the corresponding US Embassy. See INA 245(a). For those would-be applicants who have accrued more than 180 days of unlawful presence, their very departure to apply for the immigrant visa triggers either the three or ten year bar. See INA 212(a)(9)(B)(i). This places these individuals in a difficult position where they are unable to regularize their immigration status if they stay in the US, and yet they face a potential 10 year prohibition on return to the US if they leave. Those who are willing to take the risk and leave must first apply for the immigrant visa and be denied before they are able to present their waiver application. The waiver is submitted to USCIS. If the waiver is approved, USCIS sends a notice to the US Consulate which then continues to process the immigrant visa application. This process often takes several months to over a year. The applicant must wait outside of the US during this entire time, exacerbating the hardship to his or her US citizen or lawful permanent resident family members back in the US. See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012, I.D. While provisions exist for requesting expedited handling in truly desperate cases, these are rarely granted. Furthermore, AILA-DC 2012 FALL CONF. 656

349 even when expedited processing is approved, the applicant is usually stuck abroad for a minimum of three to four months. In addition to the hardship suffered by family members in the US, applicants often face dangerous conditions in their home countries. AILA has documented several examples of waiver applicants who have suffered severe harm and even death in their countries of origin. See AILA Doc (posted March 30, 2012). The uncertainty of fate that this scheme imposes leads many to choose to remain in the US in a state of legal limbo. Few are willing to risk leaving the US and their family members behind. The current administration introduced the Stateside Provisional Waiver Program as a means to alleviate some of the uncertainty and lengthy periods of separation caused by the current system. See Federal Register Volume 77, Number 63 (Monday, April 2, 2012). IV. Proposed Relief the Stateside Provisional Waiver Program A. Who Would Be Eligible? Only individuals whose sole ground of inadmissibility is unlawful presence of more than 180 days may apply for the provisional waiver. Additionally, the applicant must be the beneficiary of an approved I-130 with classification as an immediate relative. The qualifying hardship does not have to be to the petitioning relative but it does have to be to an immediate relative (US citizen spouse or parent (so long as the applicant is over the age of 21). The applicant must be physically present in US at the time of filing the provisional waiver application and must appear for biometrics. Applicants must also be 17 years or older at time of filing. See Id. at II.B-D. A would-be applicant is ineligible if he or she has not paid the immigrant visa fee and is not actively pursuing the immigrant visa application process. Under the proposed regulations, someone who has already been scheduled for an immigrant visa interview may not apply for the provisional waiver. If the individual is in removal proceedings, even those which have been administratively closed, he or she may not apply for the provisional waiver. Other prohibitions to eligibility include being the subject of an issued Notice to Appear (NTA) that has not yet been cancelled or of a final order of removal or applying for adjustment of status. Applicants may only file for the provisional waiver one time, and subsequent applications will be rejected. But see Practice Pointer in Section IV.B. below. B. How Will It Work? An eligible individual would file their waiver application with USCIS for adjudication while still in the US. The waiver will be filed on a new form (I-601A) which USCIS is developing for the process. See USCIS FAQs; Q7&A7 (March 30, 2012). Successful applicants would receive a provisional approval and could then proceed with the immigrant visa process. The provisional approval would become permanent when the individual departs the US, appears for an immigrant visa interview at the US Embassy, and is found inadmissible pursuant to INA 212(a)(2)(9)(B)(i)(I) or (II) and otherwise eligible for the waiver by the Department of State. Alternatively, the provisional approval would be automatically revoked if the immigrant visa is denied or if the Department of State terminates registration under INA 203(g). See USCIS FAQs; Q5&A5 (March 30, 2012). AILA-DC 2012 FALL CONF. 657

350 If USCIS believes additional documentation is necessary before granting a provisional approval, it will issue a request for evidence. However if the applicant is still unable to satisfy USCIS as to his or her eligibility, the provisional waiver application will be denied. USCIS will not provide applicants with a Notice of Intent to Deny and the opportunity to respond. See USCIS FAQs; Q19&A19 (March 30, 2012). Furthermore, there is no appeal procedure for denied provisional waiver applications. USCIS has indicated that it will follow the guidance set forth in USCIS Policy Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (November 7, 2011) when determining whether to issue an NTA for those individuals whose waiver applications are denied. See USCIS FAQs; Q20&A20 (March 30, 2012). This leaves the applicant with only the option of submitting to the traditional application process if the provisional waiver application is denied. However, under the regulations, USCIS can reopen for reconsideration at any time on its own motion. (Practice Pointer: if additional equities come to light applicants could presumably file a Motion to Reopen Sua Sponte). C. What is the Status of the Program? On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intent in the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the process of becoming legal immigrants to the United States. USCIS accepted comments on the proposed regulation from the public from April 2, 2012 to June 1, Presumably USCIS is currently reviewing these comments and will eventually publish a final rule. The provisional waiver process is NOT in effect. USCIS will reject any application requesting a provisional waiver at this time and return the application and any fees filed. The provisional waiver process will only take effect after a final rule is published in the Federal Register with an effective date. D. Advising Clients Who Would be Eligible Individuals who are not in removal proceedings, who would be eligible for the proposed stateside waiver program and who have not taken any steps towards regularizing their immigration status may wish to have their immediate relative file the I-130 visa petition on their behalf. An approved I-130 visa petition is a requirement for eligibility, and current processing times are approximately six months. Filing now would decrease the wait time necessary to ultimately apply for the provisional waiver. However, if the I-130 is marriage-based, the potential beneficiary should be made aware that he or she and his or her citizen spouse will be required to appear before the local USCIS District Office for an interview. Given the recently emphasized enforcement priorities of ICE and the USCIS NTA policy memo cited above, it is unlikely that the individual would be referred to ICE to initiate removal proceedings unless he or she is otherwise an enforcement priority (i.e. has criminal convictions or prior immigration violations). Practitioners are advised to carefully review their client s immigration and criminal history, including obtaining records through FBI and state criminal history searches and Freedom of Information Act (FOIA) requests where necessary, before advising the client to attend the USCIS interview. AILA-DC 2012 FALL CONF. 658

351 Potentially eligible individuals who are beneficiaries of approved I-130 visa petitions may choose to wait until final regulations are published before further pursuing an immigrant visa. Although payment of the visa fee bill and active pursuit of the immigrant visa is a requirement for the provisional waiver, it is not specified in the proposed regulations that this must have been done prior to the promulgation of the final regulation. Presumably an applicant could pay the visa fee bill once the final regulations are published and the program is enacted, or between publication and the date of implementation. Attorneys representing clients in removal proceedings who would be eligible for the program should seek continuances, administrative closure, or possibly even termination until the program is finalized. Practitioners across the country report that, for the most part, Immigration Judges have honored these requests and ICE Office of Chief Counsel has generally not opposed. Individuals with final orders of removal or those who are in removal proceedings that have not been terminated are not eligible for the provisional waiver program under the proposed regulations. Therefore practitioners are advised to avoid a removal order, and if one is imposed by the Immigration Judge, to appeal it to the BIA. If the client accepts Voluntary Departure pursuant to INA 240B, he or she will need to leave the US within the allotted time frame to avoid the negative consequences that result from overstaying a voluntary departure order. This would preclude the individual from being able to remain in the US and take advantage of the provisional waiver program. If an attorney acquires a client who would be eligible for the provisional waiver program but has a final order of removal, a motion to reopen should be pursued once the final regulations are enacted. See 8 CFR If and when the process becomes effective, attorneys should thoroughly vet potential participants, as clients may not always be as forthcoming as desired regarding activity that could constitute additional grounds of inadmissibility, such as prior immigration history or criminal background. The new program will only be available to those whose sole ground of inadmissibility is unlawful presence. Biometrics will be required for applicants, and if other grounds of inadmissibility are found the provisional approval could be reopened and denied. USCIS could also issue an NTA where appropriate. If the individual has already departed the US and is in the process of applying for the immigrant visa at the US Embassy when the additional grounds are discovered, he or she will have to apply for another waiver under the regular process. See USCIS FAQs; Q20&A20 (March 30, 2012). AILA-DC 2012 FALL CONF. 659

352 Appealing the Denial of a Waiver of Inadmissibility by Elizabeth Kohler Maya 1 I. Appellate Jurisdiction of the Administrative Appeals Office (AAO) Denials of waivers of inadmissibility filed pursuant to INA 212(g); (h); and (i) may be appealed to the AAO, which adjudicates most USCIS denials. Although the regulation designating the AAO as the appropriate appellate body was repealed as part of the restructuring of immigration functions, eliminating the Immigration and Naturalization Service and creating the Department of Homeland Security (DHS), in 2003, the AAO continues to adjudicate such appeals. On March 6, 3003, the Secretary of DHS issued a rule stating that specific delegation to replace the former section governing appeals did not need to be and would not be promulgated specifically nor codified in the Code of Federal Regulations (CFR). Although AAO jurisdiction was challenged with respect to review of several kinds of USCIS appeals, due to the absence of updated regulations in the CFR, the challenges were unsuccessful. See, e.g., U.S. v. Gonzales and Gonzales Bonds and INS Agency, 728 F.Supp.2d 1077, (N.D. Cal. 2010). Thus, the AAO still maintains its jurisdiction. II. Appellate Jurisdiction of the Board of Immigration Appeals The BIA has jurisdiction over appeals from the decisions of Immigration Judges, see 8 CFR (b) including denials of waivers of inadmissibility, as well as certain other decisions by USCIS. III. What Forms to Use Appeals to the AAO are filed on Form I-290B and require a filing fee of $ The form generally gets submitted to the USCIS office that denied the underlying waiver application and NOT directly to the AAO. This is very important because if the form is sent to the incorrect address, the appeal could be dismissed entirely or transferred to the correct address beyond the deadline for appeal. The appeal must be received by USCIS within thirty days of the date of the decision denying the waiver application. Thirty three days are permitted if the denial decision was received by mail. The form may be signed and submitted by either the Applicant or the Attorney. However if you file the form as the Attorney you must include a properly completed Form G-28 or risk have the appeal dismissed as improperly filed. Filing an appeal to the Board of Immigration Appeals (BIA) of a decision of the Immigration Judge denying a waiver of inadmissibility is done on Form EOIR-26 which requires a fee of $ The appeal must be received by the BIA within thirty days of the decision of the Immigration Judge. The Immigration Judge must inform the Respondent and Attorney of this appeal deadline, which is also written on the order denying relief. Form EOIR-26 may also 1 Elizabeth Kohler Maya is a partner of Bromberg, Kohler Maya & Maschler, PLLC. She is a member of the Virginia State Bar, the U.S. Supreme Court, the American Immigration Lawyers Association and the National Immigration Project. Elizabeth is a 2002 magna cum laude graduate of the George Mason University School of Law in Arlington, Virginia. AILA-DC 2012 FALL CONF. 660

353 be signed and filed by either the Respondent or Attorney, but if the attorney submits the appeal it must be accompanied by a properly completed EOIR-27. IV. Briefs in Support Both the AAO and BIA accept briefs in support of appeals and such briefs are encouraged to adequately lay out the reasons that the decision below was incorrect. Although neither tribunal has mandatory requirements for briefs, the BIA provides practitioners with detailed guidance as to its brief writing preferences in the Practice Manual available on its website. See Suggestions include a length of less than 25 pages and inclusion of the following sections: a statement of issues presented for review; the standard of review; a summary of the argument; the argument; and a short conclusion stating the precise relief or remedy sought. See BIA Practice Manual, Chapter 4.6. Similar guidance is not provided by the AAO. In its absence, practitioners are advised to follow general brief-writing tips, such as making the arguments concise, using appropriate subject headings, keeping topics well-organized, and making helpful references to the evidence of record. V. Preserving the Record for Appeal Attorneys presenting applications for waivers of inadmissibility should be mindful of presenting a well-organized and thoroughly documented application packet with evidence clearly identified and labeled. This is particularly important when the waiver is being submitted to USCIS, because the applicant will not be provided with a Record of Proceedings if the waiver is denied and an appeal is sought. The applicant will need to rely on his or her own copy of documents on appeal or resort to a time-consuming FOIA request. If the waiver is being submitted to the Immigration Court, strict adherence to the rules for evidence submission in the Immigration Court Practice Manual is required. See Chapter 3; Attorneys should also pay close attention when the Immigration Judge marks the evidence into the record, which should also be reflected in the transcript. In the event of an appeal to the BIA, the attorney will want to be able to appropriately refer to specific documents submitted in support of the waiver application. VI. Introducing Additional Evidence Due to the length of the appeal process, additional equities may arise and hardship factors may become exacerbated, leading to new evidence in support of the waiver. For example, the emotional toll on the qualifying relative may increase to the extent that he or she needs more intense treatment and / or medication. A child may have been born to the qualifying relative, causing further hardship due to the applicant s absence. The qualifying relative(s) may have become homeless, or lost employment. Sometimes the waiver was initially filed pro se and the applicant has retained counsel for the appeal. The newly hired attorney may wish to introduce on appeal more thorough documentation of hardship that should have been submitted with the application. The ability to supplement the record with previously available evidence varies depending upon whether the waiver was sought before USCIS or before the immigration court. AILA-DC 2012 FALL CONF. 661

354 The AAO engages in de novo review and is not bound by the findings of the USCIS Officer. The AAO generally considers additional evidence submitted on appeal. The BIA, on the other hand, reviews the Immigration Judge s decision based on the record that was presented in Immigration Court. Respondents must seek remand to present new evidence and must show that such evidence is material, probative and was not previously available. VII. Appealing vs. Re-filing Attorneys advising clients who have had their waiver applications denied by USCIS and have not been put in removal proceedings should be mindful of AAO processing times for appeals. Currently the AAO is taking approximately twenty (20) months. Additionally, when USCIS denies a waiver of inadmissibility, it typically also denies the associated adjustment of status application thus taking away the applicant s employment authorization. Many clients may prefer to file an entirely new adjustment of status application including a well-documented new waiver application despite the additional fees, in exchange for the faster processing and employment authorization. For waiver applicants who are outside of the United States pursuing consular processing, many Embassies permit re-filing, especially when the initial application was filed pro se or with a notario, and practitioners are encouraged to explore this option. Whether you are appealing, re-filing, seeking to reopen a waiver application or pursuing a combination of these strategies, attorneys should thoroughly document hardship to the qualifying relative(s), monitor any new decisions which may have been published, and confer with colleagues so as to zealously advocate for their clients. AILA-DC 2012 FALL CONF. 662

355 An Overview of I-601 Waivers and Extreme Hardship Laurel Scott Founding Attorney Scott and Associates, Attorneys at Law, PLLC Revised September 17, 2012 Under the Immigration and Nationality Act of 1996 are various provisions for the I-601 Application for Waiver of Grounds of Inadmissibility, formerly titled Application for Waiver of Ground of Excludability. This memo addresses the structure and content of an Application for Waiver of Grounds of Inadmissibility under INA 212(a)(9)(B)(v), 212(h), and 212(i). Court decisions addressing the I-601 waiver may change the existing law or create new law. Counsel are advised to independently confirm whether the law in their circuit or BIA decisions have changed existing law or precedent since the date of this memo. For the purposes of this memo the Application for Waiver of Grounds of Inadmissibility will be referred to as an I-601. The I-601 form may also be used for certain waivers that do not require a showing of extreme hardship to a qualifying relative, e.g. a waiver of the vaccination requirement. Waivers that do not require a showing of extreme hardship to a qualifying relative are not the subject of this memo. Note that when Provisional Waivers commence, hopefully at the end of 2012, the form will be the I-601A. What is an Application for Waiver of Grounds of Inadmissibility and Who Is a Qualifying Relative? An Application for Waiver of Grounds of Inadmissibility is filed by an alien in the event that an alien has been denied admission to the United States. Different sections of INA 212 allow for the application of a waiver of inadmissibility. The most common waivers must establish that a qualifying relative will suffer extreme hardship if the alien is not admitted. So who is the qualifying relative? It depends on the ground of inadmissibility. A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien, whereas a waiver for criminal history (INA 212(h)) requires it to be established that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien. A US citizen fiancé(e) may also be a qualifying relative [9 FAM N9.3(a) and I-601 form instructions]. AILA-DC 2012 FALL CONF. 663

356 Voluntarily Entering into the Foreign-Filed Waiver Process If you have a client who entered without inspection (EWI) and is now married or engaged to a US citizen, consider voluntarily entering into the waiver process after first eliminating adjustment of status (AOS) under INA 245(i) and Cancellation of Removal (COR). Always be sure to explain to your client the risks associated with voluntarily entering into the waiver process. Bear in mind that for foreign-filed waivers, the alien must remain abroad while the I- 601 is in process, which in some places can take 6-12 months or more, depending on the location. The entire process commences with an I-130 or I-129F filing as the I-601 would be filed at the consulate following an immigrant visa or K visa interview. Who adjudicates Applications for Waivers of Grounds of Inadmissibility? I-601 waivers filed at a consulate are adjudicated by a representative of USCIS, not any consular officer. The consulate may sometimes make a recommendation on whether to approve or deny an I-601, but it is the CIS office that makes the decision. Since June of 2012, the process has been centralized and all I-601s filed after the consular interview will be adjudicated at the Nebraska Service Center, unless you are requesting an expedite through the USCIS office abroad based on extraordinarily compelling circumstances. For I-601 filings associated with an adjustment of status, as opposed to an immigrant visa or K visa, the immigration officer handling the adjustment of status case often makes the decision on the I-601, though sometimes a supervisor will handle the I-601. Waivers may also be filed before a judge when adjusting status in court. The judge then adjudicates the waiver. What are some potential arguments for extreme hardship? Extreme hardship is very vaguely defined as greater than the normal hardship the qualifying relative can be expected to experience if the alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the alien. It is not enough to say that the qualifying relative will miss the alien s company as this is considered normal hardship, not extreme hardship. Below are some examples of Extreme Hardship arguments. For the purpose of this memo Relative, is always the qualifying relative. The list below is by no means exhaustive. It is provided to give the reader an idea of what might be a stronger argument versus what might be considered a weaker argument. Very Strong Arguments: (a) Relative has a MAJOR medical condition (e.g. brain tumor, multiple sclerosis, cerebral palsy) which makes Relative unable to move abroad and for which Relative absolutely needs Alien in the US to help take care of him/her, (b) Relative is caring for an elderly, chronically ill, or disabled relative who needs constant care AILA-DC 2012 FALL CONF. 664

357 and whose condition is bad enough that Relative either MUST live with the relative or Relative MUST spend at least an hour a day assisting the relative with things like hygiene or physical therapy, and this makes Relative unable to move abroad and makes him/her really need Alien in the US to help him/her care for his/her relative and manage his/her other responsibilities, or (c) Alien's country is in a state of active war or major political upheaval. Moderately Strong Arguments include: (a) Relative is the primary caregiver for his/her child(ren) from a prior relationship and the child(ren)'s other parent will not allow the children to be taken out of the country AND the child(ren) have formed an emotional attachment to Alien (b) Relative has a serious medical condition that makes it very difficult for Relative to move abroad and Relative needs Alien to provide help (e.g. Relative needs to have major surgery sometime in the next year, with an expected recovery time of several months), (c) Relative is caring for a moderately disabled relative who normally can care for him/herself but occasionally has episodes in which he/she needs a lot of help from Relative and during those times Relative, in turn, needs help from Alien, (d) a relative is unusually financially dependent on Relative (e.g. Relative's mother has just gone through a nasty divorce with Relative's father in which she got nothing and because she has never worked, she doesn't qualify for social security, so Relative is supporting her in the entirety for the rest of her life), (e) Relative has a child that he/she is about to put through college (note, some offices consider this a stronger argument, some consider it a weaker one), or (f) Alien's country is on the verge of major political unrest or negative political change or the country is known for oppression of one sort or another (e.g. Relative is a Christian woman and Alien is from Saudi Arabia), or it is in the infant stages of post-war recovery. Lesser Arguments include: (a) Relative is the non-custodial parent of a child from a prior relationship and has an actual relationship with that child and the child's other parent will not allow Relative to take the child out of the country but Alien does not have a relationship with the child at this time, (b) Relative been diagnosed by a licensed psychologist/psychiatrist with clinical depression due to Alien's immigration problems note: even thoughts of suicide do not raise this argument to Level 2, (c) Relative and Alien have young children together or Relative has full custody of Relative's child and can bring him/her abroad and Alien's home country has bad public health conditions and bad public education, (d) Relative's job requires a license in both the US and abroad and it will be very difficult to get licensed abroad (e.g. attorney, medical doctor), (e) Relative has job skills that are very specific to the US (e.g. a tax accountant with extensive familiarity with US tax law), AILA-DC 2012 FALL CONF. 665

358 (f) Alien's country has one of the very worst economies in the world, (g) Relative has a close relative who is partially dependent on Relative financially (e.g. Relative's mom gets social security but needs Relative's extra $500 per month to stay in her present apartment) or physically (e.g. Relative's mother functions well now, but her health has been declining and it is expected she will need more of Relative's help in the near future). Weak Arguments include: (a) Relative has debts they wouldn't be able to pay if they moved abroad, (b) Alien's country has a high unemployment rate and wages are low, (c) Alien's country has a high rate of violent crime and kidnapping, (d) Relative has been despondent due to the situation, but hasn't sought professional help, (e) Relative's parents are aging, (f) Relative or Relative s parent or child has high blood pressure, high cholesterol, diabetes, asthma, allergies, autism/asperger s, or ADD/ADHD. I cannot stress enough that it is insufficient to prove that Relative has elderly or sick relatives. You must show the link between the medical condition and the waiver, i.e. you must prove that the elderly or sick person needs the qualifying Relative to remain in the US and, preferably, that the Alien is also needed in the US. It is probably not worth including the argument that the couple wants to have children in the future (but are not currently pregnant) and either the wife is getting older or the foreign country has a high infant mortality rate. Whenever a waiver claims a relative is dependent on Relative either for direct care or for money, Counsel must explain why no other relative such as one of Relative's siblings can provide the same care or support. Mitigating and Aggravating Factors The ground of inadmissibility itself can be a major factor in predicting chances of approval. Likewise, there may be other mitigating and aggravating circumstances that effectively change the required level of hardship you would need to show in order to be granted the waiver. Based on my experience and what I ve seen written in some decisions, I ve compiled the following list of mitigating and aggravating factors: Mitigating Applicant voluntarily entered into the foreign-filed waiver process Applicant s only violation is unlawful presence and applicant entered the US as a child, brought by his/her family Applicant had a bona fide, reasonable belief that he/she was complying with the law AILA-DC 2012 FALL CONF. 666

359 Applicant and Petitioner s marriage has already been lengthy at the time of the waiver application Applicant and Petitioner have child(ren) in common Applicant and Petitioner had prior miscarriage(s) that would have been a child in common Aggravating Qualifying relative is from the same country as the alien, having immigrated to the US as an adult (immigrating as a child doesn t seem to be an aggravating factor) Applicant is only eligible for waiver because violation occurred before Congress eliminated the waiver for that type of violation Applicant lied in the current immigration process Applicant has multiple instances of misrepresentation Applicant violated Voluntary Departure Applicant ignored an Order for Removal Applicant has arrests for which he/she was not convicted Applicant exhausted lengthy deportation defense procedures prior to proceeding abroad Applicant accused of marriage fraud either now or in the past, even if accusation was flimsy Applicant previously married to a different USC petitioner Petitioner spouse or Applicant spouse previously had multiple marriages Petitioner s or applicant s divorce immediately preceded current marriage Whether or not a given aggravating factor should be an aggravating factor is beyond my control. Even if I think it shouldn t be an aggravating factor, if I ve seen it used against the applicant in the narrative of a denial, it made it onto my list here. If you have any mitigating factors, be sure to bring them up. If you have aggravating factors, be sure to explain them thoroughly in an attempt to minimize their impact. Remember that aggravating and mitigating factors are not about hardship; but they do affect how much hardship you will need to show. How much supporting documentation is sufficient? A waiver packet should include: form, brief or attorney letter, qualifying relative letter and supporting documents. While the form G-325A has been required in the past, at this time the only form you need to file is the I-601. The brief or attorney letter should be around 7-15 pages and the supporting documents should number pages. That being said, there are attorneys that have repeat success with briefs shorter than 5 pages. If it is absolutely necessary to supply more than 100 pages of supporting documents, then do so, but at some point one will experience the law of diminishing returns where there is the risk of annoying the adjudicator with too much to read, thereby outweighing any or all benefits of including a given document. The catch is that the Administrative Appeals Office prefers to see more evidence than any initial CIS adjudicator wants and prefers for all evidence to have been submitted in the initial filing. Keep in mind that the intent is to convince the adjudicator the first time around, so aim to please the adjudicator, not the AAO. A shorter packet can receive approval if there are a few pieces of very good evidence and a very strong argument. What constitutes sufficient evidence? Any argument presented in the I-601 must be supported with good evidence. There should be AILA-DC 2012 FALL CONF. 667

360 non-personal documents, such as country reports, and personal documents such doctors letters and psychologist letters. For non-personal documents it s best to cite US government sources, as the US government adjudicator will have more trouble dismissing them. Common sources are the Consular Information Sheets, the CIA Factsheets, and the National Institutes of Health medical encyclopedia. Keep in mind that Mexico is by far the most common country of citizenship for waiver applicants and the adjudicators do not need to see several copies of the Consular Information Sheet for Mexico every day. Country reports are much more important for I-601 filings within the US and when filing a case for a national of a country from which the OIC may see fewer waiver applications. Use newspaper articles and NGO reports sparingly when information needed cannot be found from a US government source. Certain adjudicators have openly dismissed this attorney s non-us government sources in their denials, even when the reports come from reputable sources such as Amnesty International. For personal documents, confirm all letters are signed and dated. They do not need to be notarized unless it is hard to believe that the person signing the letter would make that statement. Attorney-certified photocopies may be sent, but sending the original and keeping the copy is preferable. Doctors letters should describe the medical condition, the patient s physical limitations (e.g. no driving), the need for assistance, the need for continued medical care, and (if applicable) the physician s personal knowledge of the alien s prior role in providing direct assistance to the patient. Psychologist letters should describe the condition, how the psychologist arrived at that diagnosis, the relationship between the waiver process and the condition, the likely psychological effects of waiver denial, the frequency of the patient s visits, the medications the patient is on (if any), and the plan for future treatment. Psychological assessments are not necessary as a matter of course in every case and should be done only when the psychological condition is severe or unusual. Medical and psychological evaluations should always be supported with letters from friends and acquaintances providing lay observations that corroborate the professional evaluations and provide additional detail. Some attorneys include the doctor s or psychologist s resume. This attorney rarely finds this helpful or necessary. Some lab reports or medical notes may be appropriate depending on the case. Cases are proven with the supporting documents, not with the brief. The purpose of a brief is to make sense out of the supporting documents and place the case into legal context. Good supporting documents are paramount to getting approval. Make the legal section short for foreign filings. Most of what these adjudicators do all day is adjudicate I-601s. They are familiar with case law. For in-country filings with an adjustment of status where the adjudicators process the spectrum of applications, a legal section may be more important. The qualifying relative s letter is required. This attorney usually includes it as a supporting document. For personal documents in the form of a letter, guide the person in writing the letter, but don t write it for him/her; it needs to be in their own words. Beware of clients pulling letters off of the internet to use as a model for what they need to write. The adjudicators frequent the internet, too, and they are aware of the content of letters that have been publicly posted. If the adjudicator suspects the letter was copied off the internet, rather than authored by the person who AILA-DC 2012 FALL CONF. 668

361 signed it, the letter will be given less weight and the credibility of the entire packet may be at risk. What kind of evidence can I provide to prove rehabilitation for a criminal history? If the alien is inadmissible on criminal grounds, you must prove that the alien is rehabilitated in order to get approval on the waiver. Even if the alien is not inadmissible on criminal grounds, if the alien has any criminal history including expunged convictions, convictions as a minor, convictions that qualify for the petty offense exception, DUIs, etc. then if the alien does need a waiver for a different ground of inadmissibility, such as prior unlawful presence, then the criminal history will be part of the discretionary decision and you need to provide documentation on the conviction and evidence of rehabilitation. Such evidence may include: time since last conviction, generally more serious convictions and/or repeat offenses require more time since last conviction statements of the criminal court regarding chances of alien repeating the crime (sometimes the court actually comes out and says the defendant is unlikely to reoffend) expungements and pardons (don't get you out of ground of inadmissibility, but they're great proof of rehabilitation, 9 FAM 40.21(b) N4:1-3(b)(4) actually refers to them as "rehabilitative" statutes) letter from parole officer, policeman, judge or other law enforcement official stating that from their experience they 'know' when someone is likely to reoffend and this guy won't reoffend letter from psychologist stating that crime was result of psychological problem and now the person is better (this is especially useful for history of shoplifting without economic motivation) evidence of changed life conditions, e.g. alien committed offenses when he/she was young, foolish, unemployed, childless, and/or single, but now person is older, wiser, married, employed and/or has kids letter from clergy stating this person has changed evidence that alien is in position of trust with money (if financial crime) or trust with children (if violent or alcohol-related crime) and that the people who placed him in this position of trust KNOW the alien's criminal history evidence of successful completion of alcohol or drug treatment program if alcohol or drugs were a factor in the crime (BEWARE OF ADDICTION GROUNDS OF INADMISSIBILITY) for recent first-and-only offenses of a less serious nature, if the punishment was light, bring that up How much should I charge the client for this? If you prefer to charge a flat fee as I do, assume that this will take attorney hours or more for most cases and charge accordingly. And by attorney hours, I mean attorney hours and not paralegal hours. A well-prepared waiver application is a major undertaking and because so much of the list of documents and preparation will be unique to the facts of the case, you may find that there is much less that can be delegated to a paralegal compared to more of a forms-driven case such as a typical adjustment of status. AILA-DC 2012 FALL CONF. 669

362 Can an I-601 be filed within the US? At this time it is not possible to file the waiver in the US if the alien entered without inspection because there is an AOS problem under INA 245(a), which the I-601 will not cure. Also, if the client entered on a K visa and is not adjusting through the K visa petitioner, there is a problem under INA 245(d), which the I-601 will not cure and the alien must file abroad. But if the client doesn t have any problems adjusting under INA 245, it may be possible to file the I-601 in the US. The adjudication of local filings seems to have no rhyme or reason. It all depends on the individual immigration officer who reviews the case. Make the case as strong as possible. Hopefully by the end of 2012 the government will commence the Provisional Waiver Program, which was announced at the beginning of Under this program, the order of the steps in the process will be switched and instead of first leaving the country to interview and then filing the waiver application, the person will instead file the waiver application first and have decision in hand before proceedings abroad for the interview. It is extremely important to understand that this will NOT eliminate the requirement that the alien proceed abroad to the consulate to apply for the immigrant visa. While the final rule has not yet been published, the government has announced that the program is only intended to benefit those (a) whose only ground of inadmissibility is unlawful presence, (b) whose qualifying relative is a US citizen and not an LPR [US citizen fiancé(e)s will be excluded as qualifying relatives for the program], and (c) who are present in the US at the time of filing. Can Fiance(e)s file as qualifying relative? Yes, fiancé(e)s can file an I-601. See 9 FAM N9.3(a) and the instructions for the form. How does one file for Deportees? For aliens outside the US, if the alien needs to file an I-212 and an I-601, file them together through the Lockbox after the consular interview. Don t file the I-212 at the district office and then file the I-601 separately later. 8 CFR 212.2(d). The need to file an I-212 in addition to an I- 601 does not mean that a waiver packet will be any different than if a client needs only the I-601. In essence it means another form needs to be completed and another fee paid. However, extreme hardship needs to be proven only once. How does one file with Multiple Grounds of Inadmissibility? If the client needs waivers under INA 212(a)(9)(B)(v), INA 212(h) and INA 212(i), only one I-601 form is needed and one waiver packet, and the fee paid once. An extra fee is needed only if the client has a deportation and an I-212 must be filed as well. How can a case be expedited? Every client wants his/her case expedited. Making an expedite request on every case interferes with the efficiency of any office and slows down the procedure for everyone. An attorney wants to be a zealous advocate for their client, but try not to make expedite requests unless there is a AILA-DC 2012 FALL CONF. 670

363 truly urgent, serious situation. Let the client know at the outset of the representation that your office will not be making an expedite request. If there is an unusually compelling argument and the alien is currently present in the US, reconsider Cancellation of Removal. If the alien is eligible except for the 10-year requirement, explore the possibility of requesting Deferred Action until the 10-year mark, even if not through DACA. Such an option carries risk, but if it is an unusually compelling case, it is something to consider. Pitfalls: Grounds of Inadmissibility for Which No Waiver is Available There are several grounds of inadmissibility for which no waiver is available. Before sending a client out of the US or taking money for a case, you must make sure the client is not inadmissible under any of the following sections of law: INA 212(a)(9)(C): Applies if the alien was unlawfully present for at least one year in the aggregate after April 1, 1997, departed and returned or attempted to return without inspection OR was deported/removed at any time, left and then after April 1, If the client is not sure whether he/she was formally deported or just refused entry, run an FBI fingerprint check ( The FBI report will list all deportations, but if the alien was merely refused entry, the incident will not appear on the report. For clarification on when INA 212(a)(9)(C) applies, see Madeleine Albright s April 1998 cable regarding unlawful presence, which can be found as AILA Infonet document Review sections While there is some debate on the subject, the cable appears to clarify that the exceptions to unlawful presence (C), except that presence accumulated prior to age 18 is being counted toward INA 212(a)(9)(C). False claim of citizenship: Applies to aliens who have made a false claim of citizenship after September 30, 1996 to any state or federal government official for any purpose or benefit under state or federal law. Various agencies involved in Immigration are split on whether a false claim made by a minor or made by another on behalf of a minor will render one inadmissible on this ground. Currently the consulate in Ciudad Juarez makes no exceptions for minors. Beware that this section of law is very broad. In absentia order for removal: If your client has an in absentia order for removal, he will not be eligible to apply for a waiver for five years from the next exit from the US. No exception for minors. Nearly any drug conviction: The only drug-related crime for which a waiver is available is a single incident of simple possession of marijuana of less than 30 grams. Suspicion of drug trafficking: Carefully review police reports of prior drug-related arrests, even if the charges were dropped. The consulate only needs suspicion of trafficking. No conviction, confession or hard evidence is required. Prior gang membership: If the applicant was previously a member of a gang, regardless of the proof of rehabilitation, he will not be eligible to apply for a waiver. Deportation of a permanent resident for aggravated felony: This ground only applies to former permanent residents. Prior frivolous asylum claim: No waiver ever. Finding must be made by an immigration judge. AILA-DC 2012 FALL CONF. 671

364 Only applies if the original asylum claim was made after April 1, Prior marriage fraud: Can never again get an I-130 approved. If the alien s new immigrant visa is based on a different ground, such as employment, then a waiver is theoretically available, but unlikely to be approved unless you can prove that the prior marriage was, in fact, real. Also, there have been some concerns related to the drug history questions asked during the medical exam down in Juarez. Read AILA Practice Alert document so you can properly prepare your clients. If the alien reveals virtually any drug experimentation in the past year, he/she risks a finding of inadmissibility as a drug abuser or addict and will be ineligible to apply for a waiver of that particular ground of inadmissibility. He/she will have to show a full year of sobriety. This does not appear to comply with medical Technical Instructions for panel physicians published by CDC. There are a few other grounds of inadmissibility for which there is no waiver e.g. trying to kill the President but they are more unusual. The ones above are the most common. How to approach Rehabilitation, Moral Character and Apologies A criminal waiver can be approved on rehabilitation alone in some cases. Look at INA 212(h) and see the section above regarding evidence of rehabilitation. Other than the criminal waivers, I-601 waivers should focus on the extreme hardship to the relative and not the moral character of the alien. Generally speaking, for waivers of unlawful presence, adjudicators do not need nor want lots of letters saying what a great person the alien is. However, depending on the facts of the case, it is sometimes beneficial include character letters if there is something extraordinary about the alien s character. Even then, be conscious of the size of the packet and how much the adjudicator is being asked to read. I generally do not ask my clients to apologize for the violation of the law as these statements have a tendency to appear insincere. It is better to keep the focus on the extreme hardship to the qualifying relative than to divert focus to whether the alien is actually sorry about his/her actions. Contesting Ground of Inadmissibility If contesting the ground of inadmissibility, but with a deadline for I-601 submission and/or the belief the challenge to the finding will be unsuccessful, go forward in filing the I-601, stating in the opening paragraph that there is no concession of inadmissibility. Include the argument against the finding in the brief. This may not win over the consulate, but may win over the CIS officer. There s nothing in the law that prevents the filing of a Motion to Reconsider with the consulate or an Advisory Opinion request regarding the finding of inadmissibility, at the same time that the I-601 is filed, though consulates will usually delay adjudication of such a Motion while a waiver application is pending. AILA-DC 2012 FALL CONF. 672

365 Inquiries Contact the various offices via phone or for administrative concerns only. Don t attempt to argue the merits of the case over the phone. Discourage the client from attempting to contact CIS him/herself. Adjudicators often don t appreciate such phone calls as it takes them away from time spent deciding cases. Also, a good relationship with all offices only helps the chances of an adjudication happening quickly and to the clients benefit. Processing times are subject to change without notice. Keep the number of inquiries to a minimum as they tend to slow down the progress of work at the CIS office. If you are concerned about making sure the waiver has been received, contact USCIS no earlier than thirty days after filing. If filing any addendums directly with the CIS office following their receipt of the waiver packet, you may inquire within a few days of when it is expected they received the addendum to confirm its receipt and that it has made it to the correct file. Avoid making another inquiry until the case is outside the normal processing time. Following that, make subsequent inquiries no earlier than 30 days after the most recent prior inquiry. Discourage the client from making inquiries on his/her own without express approval from Counsel. Deadlines An I-601 cannot be filed abroad prior to the immigrant visa or K visa interview, until/unless the Provisional Waiver Program commences. For an AOS include the I-601 packet with the AOS packet, if desired, though it can be filed at or after the AOS interview. For post-consular interview filings, the interview is the earliest date the I-601 can be filed. It is not the latest date. By law they actually have one year to file. For in-country filings, sometimes the client does not know he will be found inadmissible until the adjustment interview. CIS will typically give the client 30 days to file the I-601. This is a strict deadline that generally will not be extended. Can denials to Applications for Waiver of Grounds of Inadmissibility be appealed? An appeal following an administrative denial to an Application for Waiver of Grounds of Inadmissibility must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-later with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there s a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. Even though AAO decisions are unofficially de novo, the AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or updated evidence is generally acceptable. Once an appeal is filed, and forwarded to the AAO in Washington, DC, it is out of the hands of the CIS office that denied the case. The adjudicator in Nebraska does not have more access to AILA-DC 2012 FALL CONF. 673

366 information about the appeal than the attorney. Direct inquiries to the AAO, not the office that denied the case. Due to the lengthy processing time for appeals (can be 24 months or more) consider refilling a new I-601 packet instead, especially if the client attempted the first I-601 pro se and it is clear that a better packet can be compiled. Some consulates will tell you that you cannot file a new I- 601 without starting over with a new petition. Fight the consulate on this. The DOS Advisory Opinion Office will back you up. For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory. If you think you may be able to win a Motion to Reconsider with new evidence, you must explain why the new evidence was not submitted in the first place. Adjudicators will not entertain a de novo I-601 filed as an MTR. Even if you have a good reason for not submitting the new evidence prior to the denial, the new evidence should still be limited. The more it looks like a de novo I-601, the less likely the adjudicator will be to vacate his original decision. Prepare in Advance or Wait? If there is any question as to whether the client will actually be found inadmissible, Counsel may choose to wait until the finding of admissibility is made at the consulate interview or the AOS interview prior to working on the waiver. If the client is found inadmissible, having waited will add at least 30 days to the entire process because it will take at least that long to prepare the waiver. However, if the client is not found inadmissible, the client will have saved thousands of dollars in attorney s fees. APPENDIX: CASE LAW These are cases in which the definition of Extreme Hardship is discussed. This is not an exhaustive list, but most of these cases are Suspension of Deportation or Cancellation of Removal cases or are about the waiver under INA 212(h). Especially useful is O-J-O. Matter of W, 9 I&N Dec. 1 (BIA 1960) Matter of Shaughnessy, 12 I&N 810 (BIA 1968) Matter of Anderson, 16 I&N Dec. 596 (BIA 1978) Matter of Ngai 19 I&N Dec. 245 (Comm. 1984) Matter of I-G-E, 20 I&N Dec. 880 (BIA 1994) Matter of Pilch, 21 I & N Dec. 627 (BIA 1996) Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) AILA-DC 2012 FALL CONF. 674

367 In re O-J-O-, 21 I&N Dec. 381 (BIA 1996) Matter of Monreal, 23 I & N Dec. 56 (BIA 2001) In re Kao and Lin, 23 I & N Dec. 45 (BIA 2001) Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) AILA-DC 2012 FALL CONF. 675

368 DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 212 RIN 1615-ZB10 Provisional Waivers of Inadmissibility For Certain Immediate Relatives of U.S. Citizens AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security. ACTION: Notice of intent. SUMMARY: U.S. Citizenship and Immigration Services (USCIS) intends to change its current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers under section 212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the United States for consular processing of their immigrant visa applications. An alien would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the alien as an immediate relative for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the alien s U.S. citizen spouse or parent qualifying relative. The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the alien relative s behalf. FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC , telephone (202) (this is AILA-DC 2012 FALL CONF. 676

369 not a toll free number). SUPPLEMENTARY INFORMATION: I. Background A. Overview The proposed process is intended to reduce the time that U.S. citizens are separated from immediate relatives who are required to remain outside the United States for immigrant visa application processing and during the adjudication of waivers of inadmissibility. Through this change, USCIS does not intend to modify the standard for assessing eligibility for these waivers, including whether the denial of the waiver would result in extreme hardship to a U.S. citizen spouse or parent ( qualifying relative ). For purposes of the waiver under section 212(a)(9)(B)(v) of the Act, a qualifying relative is a U.S. citizen spouse or parent or a lawful permanent resident spouse or parent who would suffer extreme hardship if their relative were not allowed to immigrate. For purposes of this provisional waiver program, DHS intends to limit who may participate in this program to immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent. Even if they obtain a provisional waiver, eligible aliens who are required to obtain a visa through consular processing would still be required to depart from the United States to apply for an immigrant visa. The purpose of the new process is to reduce the time that U.S. families remain separated while their relative proceeds through the immigrant visa process. Certain grounds of inadmissibility can bar aliens from being admitted to the United States or obtaining an immigrant visa, preventing U.S. citizens from reuniting with their immediate relatives. However, the Secretary of Homeland Security, through USCIS, may waive some of those grounds. An alien who is subject to one or more grounds of inadmissibility must obtain a 2 AILA-DC 2012 FALL CONF. 677

370 waiver, if available, from USCIS before he or she may be issued an immigrant visa by a Department of State consular officer at a U.S. embassy or consulate overseas. The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the INA, 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), based on accrual of unlawful presence in the United States, comprise one such ground. Typically, under current processes, aliens who are immediate relatives of U.S. citizens applying for immigrant visas at Department of State consular posts must apply for waivers of unlawful presence while outside the United States after a finding of inadmissibility is made by a Department of State consular officer in conjunction with their immigrant visa applications. As a result, U.S citizen petitioners are often separated for long periods of time from their immediate relatives who are applying for immigrant visas and have accrued a certain period of unlawful presence in the United States. This revised process, which eliminates the time-consuming interchange between the Department of State and USCIS, would significantly reduce the amount of time that American families will be separated from their immediate relatives. USCIS also believes that efficiencies can be gained through this revised process for both the U.S. Government and most applicants. USCIS intends to limit consideration for the provisional waiver to aliens who qualify for classification as immediate relatives of U.S. citizens, who have a U.S. citizen spouse or parent who would suffer extreme hardship if the waiver were denied, and for whom the sole basis for inadmissibility is unlawful presence in the United States of more than 180 days. USCIS would grant a provisional waiver if the alien meets the eligibility requirements described in this Notice, including demonstrating that the applicant s qualifying U.S. citizen spouse or parent would suffer extreme hardship and that the applicant warrants a favorable exercise of discretion. The provisional waiver would be granted before the alien leaves the United States to attend his or her 3 AILA-DC 2012 FALL CONF. 678

371 immigrant visa interview with a consular officer. The provisional waiver, however, would not become effective unless and until the alien departs from the United States. If the alien is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the alien may proceed to immigrate to the United States for permanent residence. This notice of intent generally describes the proposal that USCIS is considering. USCIS will further develop, and ultimately finalize, this proposal through the rulemaking process. This effort is consistent with Executive Order s call for agencies to consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected, and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective. B. Authority The Homeland Security Act of 2002, Public Law , section 102, 116 Stat. 2135, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary of Homeland Security with administration and enforcement of the immigration and naturalization laws. The Secretary would effectuate these proposed changes under the broad authority to administer the Department of Homeland Security and the authorities provided under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authority. C. Grounds of Inadmissibility U.S. immigration laws provide mechanisms for U.S. citizens to petition for certain family members for admission to the United States for purposes of family reunification. At the same 4 AILA-DC 2012 FALL CONF. 679

372 time, however, the immigration laws prescribe acts, conditions, and conduct that bar aliens, including immediate relatives of U.S. citizens, from being admitted to the United States or obtaining an immigrant visa. Such acts, conditions, and conduct include certain criminal offenses, public health concerns, fraud, misrepresentation, failure to possess proper documents, accrual of more than 180 days of unlawful presence in the United States, and terrorism. The grounds of inadmissibility are set forth in section 212(a) of the INA, 8 U.S.C. 1182(a). The Secretary of Homeland Security has the discretion to waive certain inadmissibility grounds, upon the filing of a request by an alien who meets the relevant statutory requirements. If the Secretary, through USCIS, grants such a waiver, the waived ground will no longer bar the alien s admission, readmission, or immigrant visa eligibility based on that specific ground of inadmissibility. One of the inadmissibility grounds is described in section 212(a)(9)(B)(i) of the Act, 8 U.S.C. 1182(a)(9)(B)(i). Under part (I) of this provision, an alien who was unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, will be inadmissible for three years from the date of departure. Under part (II) of the same provision, an alien who was unlawfully present for one year or more and then departs before, during, or after removal proceedings, will be inadmissible for ten years from the date of the departure. The three- and ten-year unlawful presence bars do not take effect unless and until an alien departs from the United States. By statute, aliens are not considered to be accruing unlawful presence for purposes of section 212(a)(9)(B)(i) if they fall into certain categories. For example, aliens do not accrue unlawful presence while they are under 18 years of age. See INA section 212(a)(9)(B)(iii)(I), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(I). Similarly, individuals with pending asylum 5 AILA-DC 2012 FALL CONF. 680

373 claims generally are not considered to be accruing unlawful presence while their applications are pending. See INA section 212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(II). Battered women and children and victims of a severe form of trafficking in persons are not subject to the section 212(a)(9)(B)(i) ground of inadmissibility at all if they demonstrate that there was a substantial connection between their victimization and their unlawful presence. See INA 212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V). Aliens who are subject to the unlawful presence bars must apply for and be granted a waiver in order to receive an immigrant visa and be admitted to the United States. The Secretary of Homeland Security has the discretion to waive the three- and ten-year unlawful presence bars if the alien is seeking admission as an immigrant and if the alien demonstrates that the denial of his or her admission to the United States would cause extreme hardship to the alien s qualifying relative. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The qualifying relative for purposes of the waiver is not necessarily the relative who filed the immigrant visa petition on the alien relative s behalf. For example, an alien applicant s U.S. citizen spouse may have filed the immigrant visa petition on the applicant s behalf, but the applicant s unlawful presence waiver application may be based on extreme hardship to the applicant s U.S. citizen parent. Because the granting of a waiver is discretionary, the alien also must establish that he or she merits a favorable exercise of discretion. D. Current Process and Problems An alien who must apply for permanent residence through consular immigrant visa processing outside the United States must appear for an interview with a Department of State consular officer abroad. Currently, if the consular officer determines that the alien is subject to 6 AILA-DC 2012 FALL CONF. 681

374 the three- or ten-year bar, the consular officer advises the alien that he or she is eligible to apply for a section 212(a)(9)(B)(v) waiver by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, with USCIS. Under current rules, an individual is not permitted to apply for the section 212(a)(9)(B)(v) waiver before the consular officer has made the inadmissibility determination. Once the Form I-601 is filed, in most cases, the file is transferred from the Department of State to USCIS. USCIS adjudicates that waiver request while the alien remains outside the United States and awaits a decision. If USCIS approves the waiver, USCIS notifies the Department of State, and the Department of State may then issue the immigrant visa if the applicant is otherwise eligible. If the waiver is denied, the alien may appeal the decision to the USCIS Administrative Appeals Office and, if the denial is upheld, the alien must remain outside the United States for three or ten years before being able to reapply for an immigrant visa. However, a denial does not preclude the alien from filing another Form I-601 in the future. The three- and ten-year unlawful presence bars under section 212(a)(9)(B)(i)(I) and (II) of the Act do not apply unless and until the applicant departs from the United States. At the same time, many aliens who would trigger these bars if they depart from the United States are, for other reasons, statutorily ineligible to apply for adjustment of status to lawful permanent residence while remaining in the United States. Consequently, they must depart to regularize their immigration status by applying for their immigrant visas at a U.S. embassy or consulate abroad. The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) inadmissibility that bars that alien from obtaining the immigrant visa. II. Proposed Waiver Process 7 AILA-DC 2012 FALL CONF. 682

375 A. Proposed Process The proposed change would create a more streamlined and efficient process for waiver applicants whose sole inadmissibility ground is unlawful presence, while simultaneously minimizing family separation. If the waiver determination, with respect to unlawful presence, were made in advance of the immigrant visa interview and the applicant otherwise were eligible for the immigrant visa, the consular officer could simply issue the immigrant visa at the time of the visa interview. The new process thus will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members. Additionally, the new process would reduce U.S. Government costs associated with the movement of cases, and provide a more efficient visa process overall. B. Affected Visa Categories USCIS intends to limit this process change to aliens who are immediate relatives of U.S. citizens, as defined in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must depart from the United States to obtain immigrant visas, and whose U.S. citizen spouse or parent would suffer extreme hardship if the applicant were denied admission to the United States. The term immediate relative means the spouse, parent or child (unmarried and under 21 years old) of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning for an immigrant visa must be at least 21 years old. Certain self-petitioners (i.e., widows/widowers of U.S. citizen and their minor unmarried children) may also be considered immediate relatives. See INA 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). Individuals applying for a waiver must also establish that the grant of the provisional waiver is warranted as a matter of discretion. 8 AILA-DC 2012 FALL CONF. 683

376 Because the focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress prioritization in the immigration laws, USCIS has identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change. In addition, Congress did not set an annual limitation for the number of immediate relatives of U.S. citizens admitted to the United States. Therefore, these relatives always have an immigrant visa immediately available, and the visa thus can be processed immediately upon approval. C. Ground of Inadmissibility Considered for Provisional Waiver USCIS intends to further limit this procedural change to waivers filed by immediate relatives of U.S. citizens whose only ground of inadmissibility is the three- or ten-year unlawful presence bar under section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C. 1182(a)(9)(B)(i)(I) or (II). Aliens who require waivers for one or more additional grounds of inadmissibility, such as fraud or willful misrepresentation (section 212(i) waiver) or certain criminal offenses (section 212(h) waiver), in conjunction with their immigrant visa applications must continue to file a Form I-601 while outside of the United States in accordance with the existing process. To qualify for the provisional waiver process, an applicant must establish not only that he or she is the immediate relative of a U.S. citizen, but also that denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent but does not need to be the U.S. citizen petitioner. Only extreme hardship from the denial of a waiver to a qualifying U.S. citizen relative makes an alien eligible for the provisional waiver process; extreme hardship to the alien himself or herself as a result of denial does not make the alien eligible. An alien whose waiver application is based on extreme hardship to a lawful permanent resident spouse or parent must continue to apply for the waiver from outside the United States in accordance with existing procedures. Eligible aliens, 9 AILA-DC 2012 FALL CONF. 684

377 furthermore, must be the beneficiaries of petitions classifying them as immediate relatives of U.S. citizens, and thus have visas immediately available. Because the granting of a waiver is discretionary, eligible aliens also must establish that they merit a favorable exercise of discretion. The standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such aliens will remain unchanged. D. Adjudication and Decisions After filing the Form I-601 with USCIS, DHS envisions that an alien seeking a provisional waiver would be required to undergo biometrics collection. USCIS would deny the application for a provisional waiver if other possible grounds of inadmissibility are found or arise during adjudication. If the application is approved, USCIS would notify the Department of State and the alien of the provisional approval. In all instances, a Department of State consular officer would make the formal inadmissibility finding during or following the immigrant visa interview abroad, and if no other grounds of inadmissibility arise, the provisional waiver under section 212(a)(9)(B)(v) of the Act granted by USCIS would facilitate immigrant visa issuance. If, however, the consular officer finds during adjudication of the immigrant visa application that the individual is subject to another ground of inadmissibility that can be waived, the alien would need to file another waiver application with USCIS. This process would not alter the requirement that an alien depart from the United States to apply for an immigrant visa. An alien who receives a provisional waiver under section 212(a)(9)(B)(v) of the Act for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II) of the Act would not gain the benefit of such waiver unless he or she departs from the United States. The departure from the United States would have to take place to activate the provisional 10 AILA-DC 2012 FALL CONF. 685

378 waiver under section 212(a)(9)(B)(v) of the Act. E. Excluded Visa Categories Aliens who would not be eligible for this provisional waiver adjudication process and aliens who are denied provisional approval of their waiver requests would continue to follow current agency processes for filing and adjudication of waiver requests. Aliens who fall under any other family- or employment-based or other visa category or whose section 212(a)(9)(B)(v) waiver eligibility would be based on extreme hardship to a lawful permanent resident alien relative would not be considered for provisional waivers. Aliens who are subject to other grounds of inadmissibility or removal also would not be considered for provisional waivers. Further, aliens with waiver applications under section 212(a)(9)(B)(v) of the Act currently pending in either administrative or judicial proceedings would not qualify for this new process. III. Conclusion This document outlines the key elements of USCIS s proposed change to its current process for filing and adjudication of waivers of inadmissibility for unlawful presence for immediate relative of U.S. citizens. The focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress s prioritization in the immigration laws; the new process will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members. The proposed change would affect only when and where certain aliens can apply for waivers of the unlawful presence grounds of inadmissibility; it would not change the extreme hardship standard for evaluating eligibility for the waiver nor would it change whether aliens subject to these grounds of inadmissibility must depart the U.S. to apply for their immigrant visas. USCIS plans to effectuate this proposal 11 AILA-DC 2012 FALL CONF. 686

379 through the regulatory process. USCIS will issue a proposed rulemaking that will explain the proposal in further detail and that will invite comment from all interested parties. Note: Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective. Janet Napolitano, Secretary of Homeland Security. [FR Doc Filed 01/06/2012 at 8:45 am; Publication Date: 01/09/2012] 12 AILA-DC 2012 FALL CONF. 687

380 TKELLEY on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 103 and 212 [CIS No ; DHS Docket No. USCIS ] RIN 1615 AB99 Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives AGENCY: Department of Homeland Security, U.S. Citizenship and Immigration Services. ACTION: Proposed rule. SUMMARY: On January 9, 2012, U.S. Citizenship and Immigration Services (USCIS) announced its intention to change its current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. USCIS now proposes to amend its regulations to allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers under the Immigration and Nationality Act of 1952, as amended (INA or Act), prior to departing from the United States for consular processing of their immigrant visa applications. Currently, such aliens must depart from the United States and request waivers of inadmissibility during the overseas immigrant visa process, often causing U.S. citizens to be separated for extended periods from their immediate relatives who are otherwise eligible for an immigrant visa and admission for lawful permanent residence. Under the proposal, USCIS would grant a provisional unlawful presence waiver that would become fully effective upon the alien s departure from the United States and the U.S. Department of State (DOS) consular officer s determination at the time of the immigrant visa interview that, in light of the approved provisional unlawful presence waiver and other evidence of record, the alien is otherwise admissible to the United States and eligible to receive an immigrant visa. USCIS does not envision issuing Notices to Appear (NTA) to initiate removal proceedings against aliens whose provisional waiver applications have been approved. However, if USCIS, for example, discovers acts, omissions, or postapproval activity that would meet the criteria for NTA issuance or determines that the provisional waiver was granted in error, USCIS may issue an NTA, consistent with USCIS s NTA issuance policy, as well as reopen the provisional waiver approval and deny the waiver request. USCIS anticipates that the proposed changes will significantly reduce the length of time U.S. citizens are separated from their immediate relatives who are required to remain outside of the United States for immigrant visa processing and during adjudication of a waiver of inadmissibility for the unlawful presence. USCIS also believes that the proposed process, which reduces the degree of interchange between the DOS and USCIS, will create efficiencies for both the U.S. Government and most applicants. In addition to codifying the new process, USCIS proposes amendments clarifying other regulations. Even after USCIS begins accepting provisional unlawful presence waiver applications, the filing or approval of a provisional unlawful presence waiver application will not: confer any legal status, protect against the accrual of additional unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect an alien from being placed in removal proceedings or removed from the United States. Do not send an application requesting a provisional waiver under the procedures under consideration in this proposed rule. Any provisional waiver application filed before the rule becomes final and effective will be rejected and the application package returned to the applicant, including any fees. USCIS will begin accepting provisional waiver applications only after a final rule is issued and the procedural change becomes effective. DATES: Written comments should be submitted on or before June 1, ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS , by one of the following methods: Federal erulemaking Portal: Follow the instructions for submitting comments. You may submit comments directly to USCIS by at [email protected]. Include DHS Docket No. USCIS in the subject line of the message. Mail: Sunday Aigbe, Chief, Regulatory Products Division, Office of the Executive Secretariat, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC To ensure proper handling, please reference DHS Docket No. USCIS on your correspondence. This mailing address may be used for paper, disk, or CD ROM submissions. Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory Products Division, Office of the Executive Secretariat, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC Contact Telephone Number is (202) FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy and Strategy, Residence and Naturalization Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC , Telephone (202) (this is not a toll free number). Table of Contents: I. Public Participation II. Executive Summary III. Background A. Legal Authority B. Grounds of Inadmissibility C. Unlawful Presence D. Current Waiver Process E. Problems With the Current Inadmissibility Waiver Process F. Notice of Intent IV. Proposed Changes A. Overview of Proposed Provisional Unlawful Presence Waiver Process B. Rationale for Proposed Change C. Aliens Eligible To Seek a Provisional Unlawful Presence Waiver D. Aliens Ineligible for a Provisional Unlawful Presence Waiver E. Filing, Adjudication, and Decisions F. Motions To Reopen or Reconsider or Appeals of Denied Provisional Unlawful Presence Waiver Applications G. Terms and Conditions of the Provisional Unlawful Presence Waiver H. Validity of the Provisional Unlawful Presence Waiver I. Limitations of a Provisional Unlawful Presence Waiver J. Clarification of 8 CFR 212.7(a)(1) and (a)(4) V. Public Input VI. Statutory and Regulatory Requirements A. Unfunded Mandates Reform Act of 1995 B. Small Business Regulatory Enforcement Fairness Act of 1996 C. Executive Orders (Regulatory Planning and Review) and (Improving Regulation and Regulatory Review) D. Executive Order 13132: This proposed rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of AILA-DC 2012 FALL CONF. 688 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

381 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. E. Executive Order Civil Justice Reform F. Paperwork Reduction Act G. Regulatory Flexibility Act SUPPLEMENTARY INFORMATION: I. Public Participation All interested parties are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. Comments that will provide the most assistance to DHS in developing these procedures will reference a specific portion of this rule, explain the reason for any recommended change, and include data, information, or authority that supports the recommended change. Instructions: All submissions must include the agency name and DHS Docket No. USCIS All comments received will be posted without change to including any personal information provided. Docket: For access to the docket to read background documents or comments received, go to II. Executive Summary A. Purpose of the Regulatory Action 1. Need for the Regulatory Action Currently, certain spouses, children and parents of U.S. citizens ( immediate relatives ) who are in the United States are not eligible to apply for lawful permanent resident status (LPR) without leaving the United States because they entered the country unlawfully. These immediate relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) and, in many cases, also must request from the Department of Homeland Security (DHS) a waiver of the inadmissibility that resulted from their unlawful presence while they remain outside of the United States, separated from their U.S. citizen spouses, parents, or children. In some cases, waiver application processing can take well over a year, and the prolonged separation from immediate relatives can cause many U.S. citizens to experience extreme humanitarian and financial hardships. In addition, the action required for these immediate relatives to obtain LPR status in the United States departure from the United States to apply for an immigrant visa at a DOS consulate abroad is the very action that triggers the unlawful presence inadmissibility grounds under INA section 212(a)(9)(B)(i). As a result, many immediate relatives who may qualify for an immigrant visa are reluctant to proceed abroad to seek an immigrant visa. 2. Proposed Provisional Unlawful Waiver Process DHS proposes to change its current process for the filing and adjudication of certain waivers of inadmissibility for qualifying immediate relatives of U.S. citizens, who are physically present in the United States, but must proceed abroad to obtain their immigrant visas. DHS proposes to allow qualifying immediate relatives to apply for a provisional waiver of their inadmissibility for unlawful presence while they are still in the United States and before they leave to attend their immigrant visa interview abroad. Approving an application for a provisional unlawful presence waiver prior to the immediate relative s immigrant visa interview will allow the DOS consular officer to issue the immigrant visa without delay if there are no other grounds of inadmissibility and if the immediate relative otherwise is eligible to be issued an immigrant visa. The immediate relative would not have to wait abroad during the period when USCIS adjudicates his or her waiver request, but rather could remain in the United States with his or her U.S. citizen spouse or parent during that period. As a result, U.S. citizens separation from their immediate relatives would be significantly reduced. In addition, given the greater certainty that will result from this process, U.S. citizens and their family members would also be able to better plan for the immediate relative s departure and eventual return to the United States. 3. Legal Authority The Secretary of Homeland Security s authority for this proposed procedural change can be found in the Homeland Security Act of 2002, Public Law , section 102, 116 Stat. 2135, 6 U.S.C. 112, and section 103 of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1103, which give the Secretary the authority to administer and enforce the immigration and nationality laws. The Secretary s discretionary authority to waive the ground of inadmissibility for unlawful presence can be found in INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The regulation governing certain inadmissibility waivers is 8 CFR 212.7, and the fee schedule for waiver requests is found at 8 CFR B. Summary of the Major Provisions of the Regulatory Action in Question DHS proposes to allow certain immediate relatives to file provisional waiver applications before they depart from the United States for their immigrant visa interviews. 1. Eligibility for the Provisional Waiver Individuals may request a provisional waiver if: i. Their sole ground of inadmissibility at the time of the immigrant visa interview with DOS would be unlawful presence for more than 180 days; ii. They are the beneficiary of an approved Form I 130, Petition for Alien Relative or Form I 360, Petition for Amerasian, Widow(er), and Special Immigrant (classifying them as immediate relatives), and seek an immigrant visa from DOS based on this approved petition; iii. They are physically present in the United States when they file the application for the provisional unlawful presence waiver; iv. They appear for biometrics capture in the United States; v. They establish that a U.S. citizen spouse or parent would experience extreme hardship if the individual is denied admission to the United States as an LPR; vi. They warrant a favorable exercise of discretion; and vii. They are 17 years or older at the time of filing an application for a provisional unlawful presence waiver. 2. Ineligibility for the Provisional Unlawful Presence Waiver Individuals are ineligible for a provisional waiver if: i. They are outside the United States; ii. They do not have an approved Form I 130 or Form I 360 petition, classifying them as an immediate relative; iii. They have not paid the immigrant visa processing fee to DOS and are not actively pursuing the immigrant visa process based on the approved petition; iv. They have already been scheduled for an immigrant visa interview; v. They are under the age of 17 years when the provisional unlawful presence waiver is filed; vi. They are in removal proceedings that have not been terminated or dismissed; vii. They have not had the charging document (Notice to Appear) to initiate removal proceedings cancelled; viii. They are in removal proceedings that have been administratively closed but not subsequently reopened for the issuance of a final voluntary departure order; AILA-DC 2012 FALL CONF. 689 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

382 19904 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules ix. They are subject to a final order of removal; x. They have a pending application for adjustment of status to that of an LPR in the United States; xi. USCIS has reason to believe they would be subject to one or more other grounds of inadmissibility; xii. They fail to establish extreme hardship or do not merit a favorable exercise of discretion; or xiii. They previously filed a provisional unlawful presence waiver application. 3. Adjudication and Decision USCIS would adjudicate the provisional unlawful presence waiver application and issue requests for evidence. USCIS would not issue Notices of Intent to Deny (NOIDs). If USCIS approves the provisional waiver application, USCIS would notify the applicant and DOS of the approval. Denials cannot be appealed and aliens will not have the right to seek motions to reopen or reconsider USCIS s decision. Aliens whose provisional waiver requests are denied, however, may still apply for a waiver through the current I 601 waiver process. USCIS also reserves the authority to reopen and reconsider on its own motion an approval or a denial of a provisional waiver application at any time. 4. Effect of Waiver An approved provisional waiver would not become effective until the alien departs from the United States, appears for his or her immigrant visa interview and is found admissible and otherwise eligible for the immigrant visa by DOS. The provisional waiver would then become a permanent waiver, waiving the inadmissibility based on the period of unlawful presence noted in the waiver request. 5. Revocation An approved provisional waiver is automatically revoked if DOS denies the immigrant visa application or if the underlying immigrant visa petition approval is revoked, withdrawn, or otherwise rendered invalid. An approved waiver also is revoked if the alien is inadmissible on grounds other than for unlawful presence under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), if the alien is otherwise ineligible for an immigrant visa, or if DOS terminates the alien s immigrant visa registration under INA section 203(g), 8 U.S.C. 1153(g). C. Costs and Benefits This proposed rule is expected to result in a reduction in the time that U.S. citizens are separated from their alien immediate relatives, thus reducing the financial and emotional hardship for these families. In addition, the Federal Government would achieve increased efficiencies in processing immigrant visas for individuals subject to the inadmissibility bar. DHS estimates the discounted total ten-year cost of this rule would range from approximately $100.6 million to approximately $303.8 million at a seven percent discount rate. Compared with the current waiver process, this rule proposes that the provisional waiver applicants submit biometric information. Included in this cost estimate is the cost of collecting biometrics, which we estimate will range from approximately $28 million to approximately $42.5 million at seven percent over ten years. In addition, as this rule significantly streamlines the current process, DHS expects that additional applicants will apply for the provisional unlawful presence waiver compared to the current waiver process. To the extent that this rule induces new demand for immediate relative visas, additional forms such as the Form I 130, Petition for Alien Relative, will be filed compared to the pre-rule baseline. These additional forms will involve fees being paid by applicants to the Federal Government for form processing and additional opportunity costs of time being incurred by applicants to provide the information required by the forms. The cost estimate for this rule also includes the impact of this induced demand, which we estimate will range from approximately $72.6 million to approximately $261.3 million at seven percent over ten years. Estimates for the costs of the proposed rule were developed assuming that current demand is constrained because of concerns that families may endure lengthy separations under the current system. Because of uncertainties as to the degree of the current constraint of demand, DHS used a range of constraint levels with corresponding increases in demand to estimate the costs. The costs for each increase in demand are summarized below. Estimated increase in costs with an increase in demand of: 25% 50% 75% 90% Cost of Biometrics Collection and Processing 10 year Costs Undiscounted... $40,353,130 $48,423,756 $56,494,382 $61,336,758 Total 10 year Costs Discounted at 7%... 27,967,676 33,561,211 39,154,746 42,510,867 Total 10 year Costs Discounted at 3%... 34,221,714 41,066,057 47,910,400 52,017,006 Costs of Applications for the Additional (Induced) Demand for Immigrant Visas 10 year Costs Undiscounted... $104,738,108 $209,476,215 $314,214,323 $377,057,188 Total 10 year Costs Discounted at 7%... 72,591, ,182, ,773, ,328,257 Total 10 year Costs Discounted at 3%... 88,823, ,647, ,471, ,765,613 Total Costs to New Applicants TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 10 year Costs Undiscounted... $145,091,238 $257,899,971 $370,708,705 $438,393,945 Total 10 year Costs Discounted at 7% ,558, ,743, ,928, ,839,123 Total 10 year Costs Discounted at 3% ,045, ,713, ,381, ,782,619 III. Background A. Legal Authority The Homeland Security Act of 2002, Public Law , section 102, 116 Stat. 2135, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary of Homeland Security (Secretary) with administration and enforcement of the immigration and naturalization laws. The Secretary would effectuate these proposed changes under the broad authority to administer the Department of Homeland Security and the authorities provided AILA-DC 2012 FALL CONF. 690 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

383 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authority. B. Grounds of Inadmissibility U.S. immigration laws provide mechanisms for U.S. citizens to bring their families into the United States for family reunification, including, in some cases, their immediate relatives who have previously violated the immigration laws. At the same time, however, the immigration laws prescribe acts, conditions, and conduct that bar aliens, including immediate relatives of U.S. citizens, from being admitted to the United States or obtaining an immigrant visa. Such acts, conditions, and conduct include certain criminal offenses, public health concerns, fraud and misrepresentation, failure to possess proper documents, accrual of more than 180 days of unlawful presence in the United States, and terrorism. The grounds of inadmissibility are set forth in section 212(a) of the INA, 8 U.S.C. 1182(a). The Secretary has the discretion to waive certain inadmissibility grounds, if the alien files a request and if he or she meets the relevant statutory and regulatory requirements and agency policy. If the Secretary grants the waiver, the waived ground will no longer bar the alien s admission, readmission, or immigrant visa eligibility. C. Unlawful Presence The inadmissibility grounds based on accrual of unlawful presence in the United States can be found in INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). Under part (I) of this provision, an alien who was unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, will be inadmissible for 3 years from the date of departure. Under part (II) of the same provision, an alien who was unlawfully present in the United States for one year or more and then departs the United States before, during, or after removal proceedings, will be inadmissible for 10 years from the date of the departure. These 3-year and 10-year unlawful presence bars do not take effect unless and until an alien departs from the United States. See, e.g., Matter of Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006). By statute, aliens are not considered to accrue unlawful presence for purposes of INA section 212(a)(9)(B)(i) if they fall into certain categories. For example, aliens do not accrue unlawful presence while they are under 18 years of age. See INA section 212(a)(9)(B)(iii)(I), 8 U.S.C. 1182(a)(9)(B)(iii)(I). Similarly, individuals with pending asylum claims generally are not considered to be accruing unlawful presence while their applications are pending. See INA section 212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(iii)(II). Battered women and children and victims of a severe form of trafficking in persons are not subject to the INA section 212(a)(9)(B)(i) ground of inadmissibility at all if they demonstrate that there was a substantial connection between their victimization and their unlawful presence. See INA section 212(a)(9)(B)(iii)(IV) (V), 8 U.S.C. 1182(a)(9)(B)(iii)(IV) (V). The Secretary has the discretion to waive the 3-year and 10-year unlawful presence bars if the alien is seeking admission as an immigrant and if the alien demonstrates that the denial of his or her admission to the United States would cause extreme hardship to the alien s U.S. citizen or LPR spouse or parent. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). Because the granting of a waiver is discretionary, the alien also must establish that he or she merits a favorable exercise of discretion. Aliens who are subject to the unlawful presence bars must apply for and be granted a waiver in order to receive an immigrant visa and be admitted to the United States. D. Current Waiver Process If a U.S. citizen wishes to sponsor an alien spouse, parent, or child (unmarried and under the age of 21) known as immediate relatives in the immigration laws, see INA section 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i) to immigrate to the United States as an LPR, he or she must first file a Petition for Alien Relative, Form I 130, with USCIS, with appropriate fees and in accordance with USCIS form instructions. 1 See INA section 204(a), 8 U.S.C. 1154(a); 8 CFR and 8 CFR USCIS determines if an alien qualifies for classification as an immediate relative of the U.S. citizen. 2 Id. 1 U.S. citizens also may sponsor unmarried sons and daughters (21 years of age and older) and married sons and daughters, and lawful permanent residents may sponsor spouses, children (unmarried and under the age of 21), and unmarried sons and daughters (21 years of age and older). See INA sections 203(a), 204(a), 8 U.S.C. 1153(a), 1154(a). Because these relatives would not be eligible for the provisional waiver process for the reasons described in this proposed rule, they are not included in this discussion. 2 Certain immediate relatives (i.e., widows/ widowers of U.S. citizen and their minor unmarried children) can self-petition by filing a Form I 360, If USCIS approves the petition for the alien relative, many aliens are eligible to apply for adjustment of status to that of an LPR under INA section 245, 8 U.S.C. 1255, or other provisions of law. Through adjustment of status, the alien can obtain LPR status in the United States without having to depart. There are various reasons why an alien may be statutorily ineligible for adjustment of status. For example, the alien would be ineligible if he or she entered the United States without inspection and admission or parole. Also, there are some individuals who are eligible to adjust status in the United States but choose to proceed through consular processing abroad. An alien who is seeking LPR status based on an approved Form I 130 but who is ineligible for adjustment of status must obtain an immigrant visa from a consular officer abroad before the alien can return to the United States and be admitted as an immigrant. If USCIS determines that the alien qualifies as an immediate relative of a U.S. citizen, and the alien will be pursuing consular processing of an immigrant visa application abroad, USCIS forwards the approved petition to the DOS National Visa Center (NVC). At the NVC, DOS begins to process the immigrant visa application and requests that the applicant submit the fee and the documents required for visa processing. Upon submission of all necessary documents by the alien, DOS schedules the alien for an immigrant visa interview with a DOS consular officer at a U.S. Embassy or consulate abroad. During the immigrant visa interview, the consular officer determines whether the alien is admissible to the United States and eligible for an immigrant visa. If the consular officer finds that the alien is subject to any ground of inadmissibility, including the 3-year or 10-year unlawful presence bars, the consular officer informs the alien that he or she may file an Application for Waiver of Grounds of Inadmissibility, Form I 601 (waiver application), with USCIS or, where USCIS is not present, with DOS, if a waiver is authorized for the relevant ground of inadmissibility. If the waiver application is filed with DOS, DOS forwards it to USCIS for adjudication. Petition for Amerasian, Widow(er) or Special Immigrant. Additionally, if the U.S. citizen spouse is deceased after the Form I 130 has been filed, the I 130 converts automatically to an approved I 360 widow/widower petition if the I 130 was approved at the time of the U.S. citizen s death. If the I 130 was pending at the time of the U.S. citizen s death, the pending I 130 converts automatically to a pending I 360 widow/widower petition. AILA-DC 2012 FALL CONF. 691 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

384 19906 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 The alien must remain abroad while USCIS adjudicates the waiver application. Currently, USCIS adjudicates waiver applications filed abroad at various locations in other countries and within the United States, depending on where the alien applied for his or her immigrant visa. If USCIS approves the waiver, it notifies DOS, and DOS may issue the immigrant visa if DOS determines that the alien is otherwise eligible to receive an immigrant visa. If the waiver is denied, the alien is subject to the unlawful presence bars and must remain outside of the United States for 3 or 10 years before being able to reapply for an immigrant visa. The alien may file an appeal of a denied waiver application with the USCIS Administrative Appeals Office, or file another waiver application in the future. The 3-year and 10-year unlawful presence bars do not apply unless and until the alien departs from the United States. As noted above, many aliens who would trigger these bars if they depart from the United States are, for other reasons, statutorily ineligible to apply for adjustment of status to that of an LPR while in the United States. Consequently, these aliens must depart the United States and apply for immigrant visas at a U.S. Embassy or consulate abroad before being able to return to the United States as immigrants. The action required to obtain lawful permanent residence in the United States, departure from the United States in order to apply for an immigrant visa at a consulate abroad, is the very action that triggers the INA section 212(a)(9)(B)(i) inadmissibility grounds. E. Problems With the Current Inadmissibility Waiver Process Under the current system, the entire waiver adjudication process occurs while the immediate relative remains outside of the United States, separated from his or her U.S. citizen spouse or parent. In some cases, the waiver processing time can take well over one year for reasons explained below. As a result, many immediate relatives are reluctant to proceed abroad to obtain an immigrant visa. In addition, the processing delays and extended absences of immediate relatives can cause many U.S. citizens and their families to experience extreme humanitarian and financial hardships. As such, an immediate relative s extended absence from the United States can give rise to the sort of extreme hardships to U.S. citizen family members that the unlawful presence waivers are intended to address and, if the waiver is merited, avoid. The current waiver adjudication process also creates inefficiencies and costs for the Federal Government. Overseas adjudication processing times for waivers vary by location and the number of waiver requests pending at any given time. Processing times are affected by the resources, personnel, and space available at USCIS offices abroad and the U.S. Embassy or consulate in a particular location. It is expensive for USCIS to maintain staff outside the United States, and space in U.S. Embassies and consulates is limited. Waiver processing times also are affected by the need for USCIS and DOS to transfer cases between the two agencies when adjudicating the immigrant visa application and waiver request. These limitations often prolong the overall waiver adjudication process and contribute significantly to the time U.S. citizens and their family members are separated from their immediate relatives. F. Notice of Intent On January 9, 2012, USCIS published a notice of intent announcing its intent to change the current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. 3 The notice explained the proposed process that USCIS was considering and that USCIS would further develop, and ultimately finalize, the proposal through the rulemaking process. On January 10, 2012, USCIS conducted a stakeholder engagement to discuss the notice of intent. USCIS provided an overview of how the proposed process changes may affect filing and adjudication, and USCIS addressed questions from stakeholders. More than 900 people participated via telephone and in person. Topics covered included eligibility, procedures, and consequences of an approval or denial of a provisional waiver request. IV. Proposed Changes A. Overview of Proposed Provisional Unlawful Presence Waiver Process DHS proposes to allow certain immediate relatives (spouse, parents, and children (unmarried and under the age of 21)) of U.S. citizens, as defined in INA section 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i), to apply for a waiver of inadmissibility of the unlawful presence bars before leaving the United States to attend their immigrant visa interviews 3 See 77 FR 1040 (Jan. 9, 2012). abroad. Individuals filing under the new process would be subject to a biometrics collection requirement to assist in identifying other possible grounds of inadmissibility and ensure the integrity of the process. If USCIS has reason to believe that, at the time of the visa interview, the individual may be inadmissible on grounds of inadmissibility other than the unlawful presence grounds, USCIS would deny the application. If USCIS denies the provisional waiver application, USCIS will follow the NTA issuance policy in effect at the time of adjudication to determine if it will initiate removal proceedings against the applicant. 4 If USCIS approves the provisional unlawful presence waiver, the approval would be provisional. It would become fully effective only upon the alien s departure from the United States and a determination by DOS that the alien is, in light of the approved provisional unlawful presence waiver, otherwise admissible and eligible for an immigrant visa. If USCIS denies the provisional unlawful presence waiver, the alien may apply for a waiver of the 3- or 10-year unlawful presence bar through the current process described above, following the immigrant visa interview with a DOS consular officer. Given that USCIS is establishing these provisional waiver procedures purely as a matter of agency discretion, USCIS will not, in the interests of administrative efficiency and finality, allow for more than one provisional unlawful presence waiver filing. USCIS also will not permit administrative appeals or motions to reopen or reconsider the denial of a provisional unlawful presence waiver request. See proposed 8 CFR 212.7(e)(3) and (10). USCIS, however, proposes to retain its discretionary authority to reopen or reconsider a case on a USCIS motion when warranted. See 8 CFR 103.5(a)(5). USCIS is committed to issuing Requests for Evidence (RFE) in considering applications that it receives from unrepresented individuals or others if their applications are missing critical information needed to demonstrate extreme hardship. USCIS believes that RFEs will allow the applicant to address any deficiencies and to provide any additional information to establish eligibility for the provisional waiver. However, 4 See USCIS Memorandum, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011), available at: Static_Files_Memoranda/ NTA%20PM%20(Approved%20as%20final% ).pdf. AILA-DC 2012 FALL CONF. 692 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

385 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 allowing applicants to file multiple applications would significantly interfere with the interagency operations between USCIS and DOS and substantially delay immigrant visa processing. B. Rationale for Proposed Change The 3-year and 10-year unlawful presence bars do not apply unless the alien departs from the United States. Accordingly, aliens who have accrued more than 180 days of unlawful presence do not trigger the inadmissibility ground unless and until they depart. Many of these aliens are not eligible to adjust status to that of an LPR while remaining in the United States and must depart from the United States to apply for and obtain an immigrant visa at a U.S. Embassy or consulate abroad. Therefore, the action required from the alien in order to obtain LPR status the departure to attend the immigrant visa interview is the very action that triggers the 3-year or 10-year unlawful presence bar. If DHS could approve an application for a provisional waiver of the unlawful presence bars prior to the alien s immigrant visa interview abroad, the consular officer could issue the immigrant visa without delay following the interview. The alien would not have to wait abroad while USCIS adjudicates the waiver request. Instead, the alien could remain in the United States with his or her U.S. citizen spouse or parent while USCIS adjudicates his or her provisional unlawful presence waiver request. U.S. citizens, aliens, and their family members also could better plan for the immediate relative s departure for the consular interview and eventual return to the United States. The concept of allowing applicants to apply for a waiver while still in the United States, in advance of their departure, is not new and has been implemented in other contexts. For example, certain aliens who previously were ordered removed or were removed from the United States must obtain the Secretary s consent to reapply for admission to the United States because they are inadmissible under INA section 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A). By law, consent to reapply must be obtained before the alien seeks to return to the United States. However, such aliens have been allowed to request consent to reapply in advance, while still in the United States before they depart and trigger inadmissibility under INA section 212(a)(9)(A). Thus, the proposed provisional unlawful waiver process is consistent with past practice with respect to certain pre-departure adjudications that address other grounds of inadmissibility under INA section 212(a)(9), 8 U.S.C. 1182(a)(9). An approved provisional unlawful presence waiver would facilitate immigrant visa issuance shortly after the first consular interview. DHS believes that this process change would reduce the overall visa processing time, the period of separation of the U.S. citizen from his or her immediate relative, and the financial and emotional impact on the U.S. citizen and his or her family due to the immediate relative s absence from the United States. It also may encourage individuals to take affirmative steps to obtain an immigrant visa to become an LPR as reduced waiting times abroad would render it an efficient, more predictable process, rather than one with unpredictable and prolonged periods of separation. For USCIS and DOS, the proposed changes would minimize the case transfers that are currently part of the waiver process and save both agencies time and resources. If USCIS could process and adjudicate the provisional unlawful presence waivers domestically, USCIS could move a large part of its workload to USCIS Service Centers or field offices in the United States with resources that are less expensive than overseas staffing resources and that are available and flexible enough to accommodate filing surges. By adjudicating the provisional unlawful presence waiver applications domestically, USCIS also may be able to better standardize its waiver processing times for all requests for waivers of inadmissibility that are filed by applicants who process their immigrant visas at a U.S. Embassy or consulate. Most waivers of inadmissibility filed overseas are filed by aliens who are subject to the unlawful presence bars only. USCIS has identified immediate relatives of U.S. citizens to participate in this streamlined process, in part, because the focus on U.S. citizens and their immediate relatives is consistent with Congress prioritization in the immigration laws of family reunification. 5 Congress did not set an 5 Congress emphasis on family reunification has long been reflected in immigration statutes. See, e.g., S. Rep. No , at 13 (1965) (Comm. Rep. for the Immigration Act of 1965, Pub. L , 79 Stat. 911) ( Reunification of families is to be the foremost consideration. The closer the family relationship the higher the preference. In order that the family unit may be preserved as much as possible, parents of adult U.S. citizens, as well as spouses and children, may enter the United States without numerical limitation. ) (emphasis added); see also Statement by President George Bush Upon Signing S.358 (Immigration Act of 1990), 1990 U.S.C.C.A.N (Nov. 29, 1990) ( The Act maintains our Nation s historic commitment to family reunification by increasing the number of annual limit on the number of immediate relatives who may be admitted to the United States each year; consequently, visas for these aliens can be processed without awaiting availability of an immigrant visa number. USCIS proposes to limit the provisional unlawful presence waiver process to aliens who would be subject only to the unlawful presence bars at the time of visa issuance because of the unique nature of INA section 212(a)(9)(B), as described above, and because preliminary data collected from DHS systems shows that approximately 80% of the waiver applications filed overseas are filed by aliens solely inadmissible under the unlawful presence bars. Accordingly, this proposed rule would likely affect a large number of U.S. citizens and their families who could be reunited more quickly with their immediate relatives. Finally, USCIS is further limiting eligibility for a provisional unlawful presence waiver only to immediate relatives of U.S. citizens who can establish that denial of the waiver would result in extreme hardship to their U.S. citizen spouse or parents, as provided in INA section 212(a)(9)(B)(v). DHS would not modify the extreme hardship standard. USCIS is not extending this provisional unlawful presence waiver process to preference aliens. Preference aliens do not qualify as immediate relatives of U.S. citizens; they include unmarried sons and daughters of U.S. citizens (21 years of age or older); spouses, children, unmarried sons and daughters of LPRs; married sons and daughters of U.S. citizens; and siblings of U.S. citizens. Unlike immediate relatives, the preference categories have annual numerical limitations set by statute. The processing of visas for these aliens depends on the availability of an immigrant visa number, while immediate relatives always have visa availability. Additionally, USCIS is not extending this provisional unlawful presence waiver process to immediate relatives who are basing their claim on extreme hardship to an LPR spouse or parent. For the provisional unlawful presence waiver, the qualifying relative must be a U.S. citizen. Preference aliens and immediate relatives whose qualifying relative for the extreme hardship claim is an LPR can still apply for a waiver under the current waiver process, after a consular interview abroad. immigrant visas allocated on the basis of family ties ). AILA-DC 2012 FALL CONF. 693 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

386 19908 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 This approach is consistent with the Secretary s authority to determine how best to administer the immigration laws and is within USCIS s discretion to determine the most efficient means for effectuating the waiver process. This new process is only a change in filing procedures (i.e., where an alien can seek a waiver of inadmissibility); it is not a substantive change in how USCIS determines extreme hardship. Limiting eligibility for this alternative waiver process to immediate relatives of U.S. citizens who can establish extreme hardship to a U.S. citizen spouse or parent is consistent with Congress policy choice of focusing on reunification of U.S. citizen families. Focusing on hardship to U.S. citizens in the development of this discretionary procedure also is consistent with permissible distinctions that may be drawn between U.S. citizens and aliens and between classes of aliens in immigration laws and policies, see, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977); Mathews v. Diaz, 426 U.S. 67, 81 (1976), and with the governmental interest in encouraging naturalization, see, e.g., City of Chicago v. Shalala, 189 F.3d 598, 608 (7th Cir. 1999), and cases cited therein. 6 DHS recognizes that certain immediate relatives of U.S. citizens may not be eligible to avail themselves of this alternative waiver process. Aliens who need a waiver of inadmissibility for unlawful presence based on extreme hardship to an LPR spouse or parent can still apply for such waivers after their consular interviews abroad. C. Aliens Eligible To Seek a Provisional Unlawful Presence Waiver USCIS proposes to limit the provisional unlawful presence waiver to aliens who meet the following criteria: 1. Alien Must Be the Beneficiary of an Approved Immediate Relative Petition USCIS proposes to limit this proposed provisional unlawful presence waiver process to aliens who are immediate relatives under INA section 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i). See proposed 8 CFR 212.7(e)(2). Immediate relatives of U.S. citizens include spouses of U.S. citizens; unmarried children under the age of 21 of U.S. citizens; and parents of U.S. citizens over age 21. Certain surviving spouses and children of deceased U.S. citizens, self-petitioners, and aliens who 6 The Department has not determined whether it might extend the availability of this procedure to other aliens. See, Beach Commc ns v. FCC, 508 U.S. 307, 316 (1993) (observing that policymakers must be allowed leeway to approach a perceived problem incrementally ). would become conditional permanent residents based on a marriage to a U.S. citizen for less than two years are also considered immediate relatives. Such aliens are included in the category of eligible individuals who could seek a provisional unlawful presence waiver. See INA section 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i); INA section 204(l), 8 U.S.C. 1154(l); and INA section 216, 8 U.S.C USCIS has considered the possibility that the proposed process may lead to an increase in fraudulent family-based immigrant visa petitions. USCIS is committed to preventing and detecting fraud in its immigration benefits programs and to implementing existing preventive measures provided in the immigration laws. Fraud detection and prevention are integral to USCIS s mission and to its standard operating procedures governing adjudications. USCIS s Fraud Detection and National Security division (FDNS) focuses entirely on fraud detection and national security. FDNS investigates fraud in the benefit process and makes appropriate referrals to U.S. Immigration and Customs Enforcement (ICE), the Department of Justice, or other law enforcement agencies when such fraud should be considered for criminal prosecution. USCIS also has established standard operating procedures in field offices for referrals to FDNS on potential fraud cases that may require additional review. For fraud prevention, FDNS conducts benefit fraud assessments to detect any patterns or increase in fraudulent practices in a particular application type or area of the United States. Congress also provided in the immigration laws several measures aimed at preventing marriage fraud, focusing especially on potential for fraud in marriages of less than two years duration. For instance, Congress mandated that aliens married less than two years are subject to conditional resident status for two years after admission as an immigrant. See INA section 216, 8 U.S.C. 1186a; 8 CFR part 216; 8 CFR Once USCIS approves an immediate relative petition for an alien married to a U.S. citizen, and DOS determines that the alien is admissible and eligible for an immigrant visa, the alien can seek admission to the United States as an LPR. If, however, the alien has been married to the U.S. citizen for less than two years before the date of admission, the alien is admitted conditionally for a two-year period and, during that period, is considered a conditional resident. As a general matter, the U.S. citizen petitioner and the conditional permanent resident must jointly seek to remove the condition within the 90-day period immediately preceding the second anniversary of the date the alien obtained conditional permanent residence status. See id. If the U.S. citizen petitioner and the conditional permanent resident fail to do so, the alien s conditional permanent resident status is terminated automatically, and any waiver granted in connection with the status is automatically void. See id.; see also 8 CFR and 216.4(a)(6). Furthermore, if USCIS determines that the marriage was entered into to evade the immigration laws, USCIS cannot approve future petitions for that alien. See INA section 204(c), 8 U.S.C. 1154(c). The administrative process for removal of conditions and the USCIS assessment of whether the marriage was entered into to evade the immigration laws provide strong tools for combating potential fraud. USCIS, therefore, is not proposing to exclude from the provisional unlawful presence waiver process aliens who have been married less than two years and will be admitted as conditional residents. However, in the case of marriages that would be subject to the conditional LPR provisions of INA section 216, USCIS reserves the right, in the exercise of discretion, to interview the alien and the U.S. citizen spouse (as provided in proposed 8 CFR 212.7(e)(7) of this proposed rule) in connection with the provisional waiver application, when USCIS determines that the facts in a particular case warrant additional inquiry and review. 2. Alien Must Be Present in the United States When Filing the Provisional Unlawful Presence Waiver Application and for the Biometrics Appointment USCIS proposes to limit the category of immediate relatives eligible for the provisional unlawful presence waiver to aliens who are present in the United States but who are required to depart to immigrate through the DOS consular process abroad. See proposed 8 CFR 212.7(e)(2)(i). Eligible immediate relatives also must be present in the United States to provide biometrics at an USCIS Application Support Center (ASC). This new biometric requirement will help USCIS determine if the alien potentially is subject to other grounds of inadmissibility or does not merit a favorable exercise of discretion, and is consistent with the agency s security and public safety priorities. Aliens who are outside the United States may not seek a provisional unlawful presence AILA-DC 2012 FALL CONF. 694 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

387 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 waiver but can proceed through the current waiver process. 3. Alien Must Seek a Visa Based on the Approved Immediate Relative Petition USCIS proposes to require an alien seeking a provisional unlawful presence waiver to submit evidence demonstrating that he or she has initiated the immigrant visa process with the DOS NVC based upon the approved immediate relative petition, by submitting evidence that he or she has paid the immigrant visa processing fee required by DOS. Such evidence is required to ensure that the alien is pursuing consular processing, as the provisional unlawful presence waiver would be granted to facilitate the immigrant visa interview. The alien, however, is not eligible to apply under the proposed process if he or she has already been scheduled for an immigrant visa interview at a DOS Embassy or consulate abroad. See proposed 8 CFR 212.7(e)(2) and (3). USCIS analyzed whether cases already scheduled for visa interview should be included in the provisional unlawful presence waiver process. USCIS determined that resource constraints and timing issues warranted exclusion of these cases from participation. Therefore, any immigrant visa applicants who have already had their appointments scheduled, whether they actually appeared for the interview or not, should proceed with the immigrant visa process and not delay. 4. Alien Must Be Inadmissible Based Solely on Unlawful Presence at the Time of the Immigrant Visa Interview With DOS USCIS proposes to further limit this provisional unlawful presence waiver process to immediate relatives whose only ground of inadmissibility is, or would be upon departure from the United States, the 3-year or 10-year unlawful presence bars under INA section 212(a)(9)(B)(i)(I) or (II), 8 U.S.C. 1182(a)(9)(B)(i)(I) or (II) at the time of the consular interview. See proposed 8 CFR 212.7(e)(2) and (e)(3)(i). USCIS proposes that if, when processing the provisional waiver application, USCIS has reason to believe that an alien may be inadmissible on a ground of inadmissibility other than unlawful presence under INA section 212(a)(9)(B)(i) at the time of the visa interview with DOS, USCIS will deny the provisional unlawful presence waiver application. Such a denial of a provisional unlawful presence waiver request would not be appealable; however, it would not preclude the alien from filing a waiver application under the current waiver process following the consular interview. See proposed 8 CFR 212.2(e)(7) and (e)(10). Furthermore, USCIS s determination that it does not have reason to believe that the individual may be inadmissible on grounds other than the 3-year or 10- year unlawful presence bar at the time of the immigrant visa interview does not preclude DOS from making its own admissibility determination and its own finding that the individual may be ineligible for the immigrant visa despite the approved provisional unlawful presence waiver. Jurisdiction for making final ineligibility findings in relation to the consular immigrant visa process lies with DOS, not with USCIS. Similarly, neither USCIS s approval of the provisional unlawful presence waiver application nor DOS s visa eligibility determination and subsequent immigrant visa issuance guarantees that an alien will be admitted to the United States by U.S. Customs and Border Protection (CBP) if CBP determines that the individual is inadmissible on grounds other than those that were validly waived. See INA sections 204(e), 221(h); 8 U.S.C. 1154(e), 1201(h). 5. Alien Must Meet the Requirements for the Unlawful Presence Waiver An alien must meet all statutory requirements for the unlawful presence waiver, as outlined in INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), including the limitation that the alien must show extreme hardship to a U.S. citizen spouse or parent. 7 The alien also must establish that he or she warrants a favorable exercise of discretion. Under current policy, USCIS considers the death of a U.S. citizen petitioner to be the functional equivalent of extreme hardship for purposes of a waiver sought by an applicant who is a surviving immediate relative of a deceased U.S. citizen and who meets the requirements of INA section 204(l), 8 U.S.C. 1154(l), if the extreme hardship being claimed by the surviving beneficiary would have been on account of extreme hardship to the U.S. citizen petitioner if he or she had survived. Note, however, that the finding of extreme hardship merely permits, and never compels, a favorable exercise of discretion. 8 7 INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), allows for consideration of extreme hardship to a U.S. citizen spouse or parent or to an LPR spouse or parent. As explained previously, USCIS is limiting eligibility for the provisional waiver to those who can show extreme hardship to a U.S. citizen spouse or parent. 8 See USCIS Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act (Dec. 16, 2010), Any alien who can only qualify for a waiver based on extreme hardship to an LPR spouse or parent can still apply for a waiver under the existing process after an immigrant visa interview at a U.S. Embassy or consulate abroad. 6. Alien Must Be Age 17 or Older at the Time of Filing a Provisional Unlawful Presence Waiver USCIS proposes to accept provisional unlawful presence waiver applications for immediate relatives 17 years of age and older but reject applications filed by those under the age of 17. Unlawful presence does not begin to accrue until an alien who is unlawfully present in the United States reaches the age of 18. Accepting waiver applications from an alien who is 17 years of age or older would prevent an alien s prolonged separation from his or her U.S. citizen relative in the event that the alien s immigrant visa interview is scheduled after his or her 18th birthday. D. Aliens Ineligible for a Provisional Unlawful Presence Waiver Under the proposed rule, immediate relatives of U.S. citizens would not be eligible for a provisional unlawful presence waiver under proposed 8 CFR 212.7(e) if: i. They are outside the United States; ii. They are not the beneficiaries of either an approved Petition for Alien Relative, Form I 130, classifying them as an immediate relative, or an approved Petition for Amerasian, Widow(er), and Special Immigrant, Form I 360, classifying them as an immediate relative; iii. They are not actively pursuing consular processing of an immigrant visa based on the approved immediate relative petition and have not paid the immigrant visa processing fee to DOS; iv. They have been scheduled for an immigrant visa interview at the time they submit an application for a provisional unlawful presence waiver; v. They fail to comply with the biometric capture requirements; vi. They are under the age of 17 years when the provisional unlawful presence waiver application is filed; vii. They are in removal proceedings that have not been terminated or dismissed; viii. They have not had the charging document (Notice to Appear) to initiate removal proceedings cancelled; ix. They are in removal proceedings that have been administratively closed available at Memoranda/2011/January/Death-of-Qualifying- Relative.pdf; see also Matter of Cervantes-Gonzalez, 22 I. & N. Dec. 560, 565 (BIA 1999), aff d, 244 F.3d 1001 (9th Cir. 2001). AILA-DC 2012 FALL CONF. 695 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

388 19910 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 but not subsequently reopened for the issuance of a final voluntary departure order; x. They are subject to a final order of removal issued under section 235, 238 or 240 of the Act or any other provision of law (including an in absentia removal order under section 240(b)(5) of the Act); xi. They have a pending application with USCIS for lawful permanent resident status in the United States; xii. USCIS has reason to believe that the alien may be subject to other grounds of inadmissibility at the time of immigrant visa interview with DOS; xiii. They have not established to USCIS s satisfaction that denial of the waiver would result in extreme hardship to the alien s U.S. citizen spouse or parent or that a favorable exercise of discretion is merited; or xiv. The alien has previously filed a provisional unlawful presence waiver application. While individuals with cases pending with the NVC who have paid the immigrant visa processing fee to DOS and not yet been scheduled for a consular visa interview would be eligible to apply for the provisional unlawful presence waiver, applicants who have had their immigrant visa interviews scheduled will not be allowed to participate in the provisional waiver process. The inclusion of these cases was analyzed but resource constraints and the close coordination with DOS on the timeframes for interview scheduling once the provisional waiver application has been filed, led to the decision to exclude the cases from participation. NVC and USCIS intend that both document collection for the immigrant visa interview and waiver adjudication should occur as parallel processes that will conclude at the same time, thus allowing NVC to schedule the immigrant visa interview and transfer the case to post with no additional delay. Therefore, any immigrant visa applicant who has already had his or her appointment scheduled, whether they actually appeared for the interview or not, should proceed with the immigrant visa process and not delay. DHS is considering development of a process to permit filing of provisional unlawful presence waiver applications by certain individuals who: (a) Are in removal proceedings but have had such proceedings administratively closed and were subsequently granted voluntary departure, (b) were in removal proceedings that have been terminated or dismissed or (c) have had the charging document (Notice To Appear) to initiate removal proceedings cancelled. Aliens who cannot participate in the proposed provisional unlawful presence waiver process may still pursue a waiver through the current waiver process. E. Filing, Adjudication, and Decisions 1. Filing the Provisional Unlawful Presence Waiver Application DHS proposes to require an alien seeking a provisional unlawful presence waiver to file an application on the form designated by USCIS, with the fees prescribed in proposed 8 CFR 103.7(b)(1) and (b)(1)(i)(c), and in accordance with the form instructions. See proposed 8 CFR 212.7(a)(1) and (e)(4). For this new process, USCIS has created and proposes to use a new Application for Provisional Unlawful Presence Waiver, Form I 601A. The filing fee for the Form I 601A will be the same as Form I 601, which is currently $585, since the adjudication time required for both forms is the same. 9 See proposed 8 CFR 103.7(b)(1)(i)(AA). USCIS will not accept fee waiver requests for the Form I 601A. The biometrics fee is currently $85 and also cannot be waived. See proposed 8 CFR 103.7(b)(1)(i)(C) and 8 CFR The new Form I 601A will minimize the potential for confusion between the provisional waiver process and the current Form I 601 waiver process. Additionally, applicants for a provisional unlawful presence waiver would be required to undergo biometrics collection to ensure the integrity of the process and assist USCIS in determining if the applicants have other potential grounds of inadmissibility. See proposed 8 CFR 212.7(e)(5). DHS would deny the provisional unlawful presence waiver application based on abandonment of the application if the applicant fails to provide biometrics or fails to appear at the biometrics appointment. See proposed 8 CFR 103.2(b)(13) and proposed 8 CFR 212.7(e)(5). 2. Adjudication of the Provisional Unlawful Presence Waiver Application Once a provisional unlawful presence waiver application is properly filed, 9 The INA provides for the collection of fees at a level that will ensure recovery of the full costs of providing adjudication and naturalization services, including services provided without charge to asylum applicants and certain other applicants. INA section 286(m), 8 U.S.C. 1356(m). The INA provides that the fees may recover administrative costs as well. For further information about USCIS fees, see U.S. Citizenship and Immigration Services Fee Schedule, 75 FR (Sept. 24, 2010) and 75 FR (June 11, 2010). USCIS would adjudicate the provisional unlawful presence waiver. The alien still would have the burden to establish that he or she is eligible for the waiver and meets the requirements outlined in INA section 212(a)(9)(B)(v), with the additional limitation that the alien must establish extreme hardship only to his or her U.S. citizen spouse or parent. See proposed 8 CFR 212.7(e)(2) and 8 CFR 212.7(e)(7). The alien also would have to demonstrate that he or she warrants a favorable exercise of the Secretary s discretion. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v); proposed 8 CFR 212.7(e)(6). If the alien meets all eligibility requirements, and a favorable exercise of discretion is warranted, USCIS would approve the provisional unlawful presence waiver. See 8 CFR 212.7(e)(2). 3. Requests for Evidence DHS proposes to issue RFEs in accordance with USCIS regulations at 8 CFR and applicable USCIS policy. USCIS will not issue Notices of Intent to Deny (NOIDs) to provisional unlawful presence waiver applicants. DHS proposes to limit RFEs solely to the issues of whether the alien has established extreme hardship and/or merits a favorable exercise of discretion. USCIS is committed to issuing RFEs to address applications it receives that are missing critical information needed to demonstrate extreme hardship. USCIS also has determined that issuing NOIDS could significantly interfere with the operational agreements between USCIS and DOS and could substantially delay immigrant visa processing. If an alien fails to respond to an RFE within the stated time frame, USCIS may deny the provisional unlawful presence waiver application as abandoned. See 8 CFR 103.2(b)(13)(i). 4. Denials USCIS would deny a provisional unlawful presence waiver application without issuing an RFE when the alien fails to meet any of the specified eligibility criteria described in proposed 8 CFR 212.7(e). An alien whose provisional unlawful presence waiver application is denied may seek a waiver after the DOS consular officer has made an admissibility determination at the immigrant visa interview at a U.S. Embassy or consulate abroad. See proposed 8 CFR 212.7(e)(10). An alien may not seek multiple provisional unlawful presence waivers. See proposed 8 CFR 212.7(e)(3). AILA-DC 2012 FALL CONF. 696 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

389 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 5. Rejections of Provisional Unlawful Presence Waiver Applications USCIS also proposes to codify the criteria for when an application will be rejected and fees returned to the applicant. The goal is to reduce the likelihood than an alien will erroneously file a waiver application and further delay his or her immigrant visa processing. USCIS would reject a request for a provisional unlawful presence waiver if the alien: A. Fails to pay the required fees for the waiver application or biometrics collection or pay the correct fee; B. Fails to sign the waiver application; C. Fails to provide his or her family name, domestic home address, and date of birth; D. Is under the age of 17 years. E. Does not include evidence of an approved petition that classifies the alien as an immediate relative of a U.S. citizen; F. Does not include a copy of the immigrant visa fee receipt evidencing that the alien has paid the immigrant visa processing fee to DOS; G. Has indicated on the provisional unlawful presence waiver application that a visa interview has been scheduled with DOS; or H. Has not indicated on the provisional unlawful presence waiver application that the qualifying relative is a U.S. citizen spouse or parent. See proposed 8 CFR 212.7(e)(4)(ii). An alien whose application was rejected is not prohibited from filing a new provisional unlawful presence waiver application according to the procedures outlined in proposed 8 CFR 212.7(e). 6. Withdrawal of the Request for a Provisional Unlawful Presence Waiver An alien may withdraw a provisional unlawful presence waiver application at any time prior to a final decision. Subsequent to the withdrawal, the case will be closed, and the alien and his or her representative (if applicable) will be notified. DOS/NVC also will be notified of the action. See proposed 8 CFR 212.7(e)(8) and (9). An alien who withdraws an application for a provisional unlawful presence waiver will not be permitted to later file a new application, and the filing fees will not be refunded. F. Motions To Reopen or Reconsider or Appeals of Denied Provisional Unlawful Presence Waiver Applications Aliens seeking a provisional unlawful presence waiver would not be able to file a motion to reopen or motion to reconsider or to appeal a denial of a request for a provisional waiver. See proposed 8 CFR 212.7(e)(10). Rather, such aliens could apply for a waiver through the current consular immigrant visa process. See id. USCIS proposes to retain its authority and discretion to reopen or reconsider a decision on its own motion. See proposed 8 CFR 212.7(a)(4)(v) and 8 CFR 212.7(e)(12). For the provisional unlawful presence waiver process, USCIS may reopen the decision and deny or approve the provisional unlawful presence waiver at any time if USCIS finds that the decision was issued in error or approval is no longer warranted. USCIS would follow the requirements of 8 CFR 103.5(a)(5) before reopening a case and denying a waiver application. A USCIS decision to deny a provisional unlawful presence waiver is not subject to administrative appeal. USCIS s decision is discretionary and is not a final agency action subject to judicial review, since USCIS s decision is without prejudice to the alien s ability to seek a waiver from USCIS through the consular immigrant visa process. See proposed 8 CFR 212.7(a)(3) and (e)(8) and (e)(10). G. Terms and Conditions of the Provisional Unlawful Presence Waiver DHS proposes that a provisional unlawful presence waiver will not become a final waiver unless and until the alien departs from the United States, he or she presents himself or herself for the immigrant visa interview at a U.S. Embassy or consulate abroad, and the DOS consular officer determines that, in light of the approval of the provisional waiver and other evidence of record, the alien is otherwise admissible to the United States and eligible for an immigrant visa. See proposed 8 CFR 212.7(e)(11). Once DOS determines that the alien is eligible for an immigrant visa, the provisional unlawful presence waiver will become final and fully effective, subject to 8 CFR 212.7(a)(4). See proposed 8 CFR 212.7(a)(4) and 8 CFR 212.7(e)(11) and (e)(12). A provisional unlawful presence waiver would only be effective for immigrant visa issuance based on the approved immediate relative petition. If the consular officer determines that the alien is inadmissible on other grounds, the provisional unlawful presence waiver is automatically revoked and the alien would be required to file a new waiver application that covers all applicable grounds of inadmissibility, including the 3-year or 10-year unlawful presence bar. See proposed 8 CFR 212.7(e)(13). DHS also proposes to limit the grant of a provisional unlawful presence waiver to the time period of the immigrant visa registration of an alien in accordance with INA section 203(g), 8 U.S.C. 1153(g). 10 DOS may terminate an alien s immigrant visa registration if the alien fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa. DOS, however, may reinstate the alien s immigrant visa registration if the alien establishes that within two years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond his or her control. See INA section 203(g), 8 U.S.C. 1153(g); 22 CFR Thus, the grant of the provisional unlawful presence waiver is valid as long as the alien s immigrant visa registration has not been terminated by DOS pursuant to INA 203(g) and the underlying immigrant visa petition has not been revoked, withdrawn, or otherwise terminated. Furthermore, the validity of the provisional unlawful presence waiver also is dependent on the continued validity of the approved immediate relative petition. See proposed 8 CFR 212.7(a)(4), (e)(11), (e)(12) and (e)(13). If the approval of the visa petition or selfpetition is revoked for any reason, the provisional waiver would be automatically revoked, unless it is otherwise reinstated for humanitarian reasons or converted to a widow/ widower petition. Under proposed 8 CFR 212.7(a)(4) and 8 CFR (e)(13), the provisional unlawful presence waiver also would be revoked automatically when: An immigrant visa ineligibility cannot be overcome; the approved immigrant visa application is withdrawn, or otherwise rendered invalid at any time; or when DOS terminates the registration of the immigrant visa application pursuant to INA section 203(g), 8 U.S.C. 1153(g), and DOS has not reinstated the registration in accordance with section 203(g), 8 U.S.C. 1153(g). Termination of registration under INA section 203(g), 8 U.S.C. 1153(g), also automatically revokes the approval of the underlying immediate relative petition under 8 CFR 205.1(a)(1). Finally, a provisional unlawful presence waiver grant is revoked automatically if the alien, at any time, 10 INA section 203(g) provides in relevant part: The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within 2 years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien s control. See also 22 CFR (implementing INA section 203(g)). AILA-DC 2012 FALL CONF. 697 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

390 TKELLEY on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules reenters or attempts to reenter the United States without admission or parole. See proposed 8 CFR 212.7(e)(13). H. Validity of the Provisional Unlawful Presence Waiver Once the provisional waiver takes full effect in accordance with this rule, the alien would no longer be inadmissible to the United States under INA section 212(a)(9)(B) based on previouslyaccrued unlawful presence. The alien s period of unlawful presence in the United States upon which the waiver is based would be permanently waived, other than for conditional permanent residents whose status is terminated and certain K nonimmigrants, as described below. See proposed 8 CFR 212.7(a)(4) and (e)(12). The consular officer could issue the immigrant visa since the alien is no longer inadmissible. I. Limitations of a Provisional Unlawful Presence Waiver The application for, or grant of, a provisional unlawful presence waiver under this proposed rule does not create a lawful immigration status or extend any authorized period of stay to the alien while the provisional waiver application is pending review with USCIS or while the alien is waiting for his or her immigrant visa interview. If an alien is present in the United States without lawful immigration status, he or she remains subject to removal, as provided by law. See INA section 240, 8 U.S.C. 1229a. A pending or approved application for a provisional unlawful presence waiver also will not toll the accrual of unlawful presence, but a grant of the provisional unlawful presence waiver will cover inadmissibility under both the 3-year and the 10-year bars under INA section 212(a)(9)(B)(i). A pending or approved application for a provisional unlawful presence waiver will not protect the alien from any other grounds of inadmissibility that he or she may be subject to in the future, such as the bar for unlawful reentry after previous immigration violation in the United States, under INA section 212(a)(9)(C), 8 U.S.C. 1182(a)(9)(C). A pending or approved provisional unlawful presence waiver does not provide an individual with the right to obtain advance parole, the right to enter the United States, or the right to obtain and be granted any other immigration benefit. Finally, a pending or approved provisional unlawful presence waiver does not guarantee issuance of an immigrant visa or admission to the United States based upon the immigrant visa. J. Clarification of 8 CFR 212.7(a)(1) and (a)(4) DHS also proposes two clarifying amendments to 8 CFR 212.7(a)(1) and (a)(4). See proposed 8 CFR 212.7(a)(1) and (a)(4). The first clarifying amendment is necessary because of an amendment to 8 CFR 212.7(a)(1) that DHS included as part of the final rule published in the Federal Register on August 29, 2011, at 76 FR (August 29, 2011 final rule). The August 29, 2011 final rule provides the regulatory framework that will enable USCIS to migrate from a paper filebased, nonintegrated systems environment to an electronic customerfocused, centralized case management environment for benefits processing. Before the August 29, 2011 final rule entered into effect on November 28, 2011, 8 CFR 212.7(a)(1) read: Form I 601 must be filed in accordance with the instructions on the form. When filed at a consular office, Form I 601 shall be forwarded to USCIS for a decision upon conclusion that the alien is admissible but for the grounds for which a waiver is sought. The August 29, 2011 final rule revised the provision, effective November 28, 2011, so that it now reads: Any alien who is inadmissible under sections 212(g), (h), or (i) of the Act who is eligible for a waiver of such inadmissibility may file on the form designated by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with the form instructions. When filed at the consular section of an embassy or consulate, the Department of State will forward the application to USCIS for a decision after the consular official concludes that the alien is otherwise admissible. 8 CFR 212.7(a)(1), as amended at 76 FR (emphasis added). Deletion of the specific reference to the Form I 601 is consistent with the purpose of the August 29, 2011 final rule by facilitating the move to electronic filing and case management. The reference to aliens inadmissible under sections 212(g), (h), or (i) of the Act, however, is an error. The cited provisions are not grounds of inadmissibility but are the statutory bases for some of the waivers of inadmissibility that an alien may seek under 8 CFR For example, an alien who is inadmissible based on the 3-year and 10-year unlawful presence bar under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), uses the same application process to seek a waiver of inadmissibility for unlawful presence under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). Therefore, the reference to INA section 212(g), (h) and (i) is removed and replaced with the more general reference who is inadmissible under any provision of section 212(a) of the Act. In addition, the second sentence in 8 CFR about forwarding of an application from DOS to USCIS is not necessary. The second sentence is an internal case management provision that does not directly affect how an applicant seeks the benefit. For these reasons, DHS proposes to revise 8 CFR 212.7(a)(1) so that its text more fully aligns with the purpose of the August 29, 2011 final rule. Rather than referring only to three types of waivers that an alien may seek, the amended provision would apply to any waiver of inadmissibility that an alien currently seeks by filing the Form I 601 or any future form that may be designated by USCIS for waivers of grounds of inadmissibility under these provisions. The proposed amendment would remove what is now the second sentence in current 8 CFR 212.7(a)(1). Finally, the proposed amendments would clarify who can apply for the waivers covered under 8 CFR 212.7(a)(1). DHS also proposes to amend 8 CFR 212.7(a)(4), concerning the validity of a waiver of inadmissibility. Two general principles are that a waiver of inadmissibility applies only to the specific grounds for which a waiver is sought, and that, except as described in this rule with respect to provisional unlawful presence waivers, the waiver, once granted, is valid indefinitely. DHS does not intend to alter these principles, and the proposed amendment includes them. One exception to these general principles relates to aliens who obtain a waiver of inadmissibility in conjunction with an application for lawful permanent resident status and who are admitted as LPRs on a conditional basis under section 216 or 216A of the Act, 8 U.S.C or 1186A. For any such aliens, termination of conditional LPR status would also terminate the validity of the waiver. The waiver would be restored if the alien challenges the termination in removal proceedings and the removal proceedings result in the restoration of the alien s status as an LPR. See current 8 CFR 212.7(a)(4) and proposed 8 CFR 212.7(a)(4). Another exception is necessarily inferred from the statute. Sections 101(a)(15)(K)(i) and 214(d) of the Act, 8 U.S.C. 1101(a)(15)(K)(i) and 1184(d), permit the nonimmigrant admission of the alien fiancé(e) of a citizen of the United States. Although technically issued nonimmigrant visas and admitted as nonimmigrants, the fiancé(e), and any accompanying or following-to-join children, are treated like immigrants who are immediate AILA-DC 2012 FALL CONF. 698 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

391 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 relatives. See Matter of Le, 25 I&N Dec. 541 (BIA 2011), and Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). DOS regulations require such aliens to qualify for immigrant visas. 22 CFR 41.81(d). Since the publication of a final rule on August 10, 1988, DHS has allowed nonimmigrant fiancé(e)s and their children to seek inadmissibility waivers as immigrants. See Marriage Fraud Amendments Regulations, 53 FR (Aug. 10, 1988). This practice is consistent with the principle, recognized in Matter of Le and Matter of Sesay, that the fiancé(e) and accompanying children are similar in important respects to immigrants who are immediate relatives. The statutory provisions, including INA sections 212(a)(9)(B)(v), (g), (h) and (i), 8 U.S.C. 1182(a)(9)(B)(v), (g), (h), and (i), however, generally make the waivers available only to spouses of citizens and LPRs. The fiancé(e) is not yet a spouse. For this reason, a waiver granted to a fiancé(e), and any accompanying or following-to-join children, can only be fully effective once the intended marriage takes place. DHS proposes to amend 8 CFR 212.7(a)(4) to make this necessary corollary explicit. V. Public Input DHS invites comments from all interested parties, including advocacy groups, nongovernmental organizations, community-based organizations, and legal representatives who specialize in immigration law on any and all aspects of this proposed rule. DHS is specifically seeking comments on: A. The proposed waiver process; B. Proposed filing procedures; and C. Any alternatives to the proposed waiver process that may be more effective than the current USCIS overseas waiver process. VI. Statutory and Regulatory Requirements A. Unfunded Mandates Reform Act of 1995 This proposed rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of B. Small Business Regulatory Enforcement Fairness Act of 1996 This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreignbased companies in domestic and export markets. C. Executive Orders (Regulatory Planning and Review) and (Improving Regulation and Regulatory Review) 1. Executive Orders and direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is a significant regulatory action, although not an economically significant regulatory action, under section 3(f) of Executive Order Accordingly, the Office of Management and Budget has reviewed this regulation. This effort is consistent with Executive Order s call for agencies to consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Summary The proposed rule would allow certain immediate relatives of U.S. citizens who are physically present in the United States to apply for a provisional waiver of the 3-year or 10-year bar for accrual of unlawful presence prior to departing for consular processing of their immigrant visa. This new provisional unlawful presence waiver process would be available to aliens whose only ground of inadmissibility is, or would be, the 3-year or 10-year unlawful presence bar. This proposed rule is expected to result in a reduction in the time that U.S. citizens are separated from their alien immediate relatives, thus reducing the financial and emotional hardship for these families. In addition, the Federal Government would achieve increased efficiencies in processing immediate relative visas for individuals subject to the inadmissibility bar. DHS estimates the discounted total ten-year cost of this rule would range from approximately $100.6 million to approximately $303.8 million at a seven percent discount rate. Compared with the current waiver process, this rule proposes that the provisional waiver applicants submit biometric information. Included in this cost estimate is the cost of collecting biometrics, which we estimate will range from approximately $28 million to approximately $42.5 million at seven percent over ten years. In addition, as this rule significantly streamlines the current process, DHS expects that additional applicants will apply for the provisional waiver compared to the current waiver process. To the extent that this rule induces new demand for immediate relative visas, additional forms such as the Petitions for Alien Relative, Form I 130 will be filed compared to the pre-rule baseline. These additional forms will involve fees being paid by applicants to the Federal Government for form processing and additional opportunity costs of time being incurred by applicants to provide the information required by the forms. The cost estimate for this rule also includes the impact of this induced demand, which we estimate will range from approximately $72.6 million to approximately $261.3 million at seven percent over ten years. A key uncertainty that impacts any cost estimate of this rule is the uncertainty involving the actual number of people that will avail themselves to this streamlined provisional waiver process. USCIS is not aware of any data that will allow us to estimate with precision the increase in demand due to this rule. For cost estimating purposes, DHS has analyzed the cost of an increase in demand of 25%, 50%, 75% and 90% compared to the existing waiver process. 2. Problems Addressed by the Proposed Changes Currently, aliens undergoing consular processing of their immediate relative visas cannot apply for an unlawful presence waiver until the consular officer determines that they are inadmissible during their immigrant visa interviews. The current unlawful presence waiver process requires these immediate relatives to remain abroad until USCIS adjudicates the waiver. DOS can only issue the immigrant visa upon notification from USCIS that the waiver has been approved. As previously mentioned, the processing time under the current waiver process can take over one year. Because of these lengthy processing times, U.S. citizens AILA-DC 2012 FALL CONF. 699 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

392 19914 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 may be separated from their immediate relative family members for prolonged periods resulting in financial, emotional, and humanitarian hardships. Family unification is a foundational principle of immigration law. The proposed rule would permit certain immediate relatives to apply for a provisional unlawful presence waiver prior to departing the United States. USCIS would adjudicate the provisional unlawful presence waiver and, if approved, would provide notification to DOS. Thus, the provisionally approved waiver would be available to the consular officer at the immigrant visa interview. If the consular officer determines there are no other impediments to admissibility and that the alien is otherwise eligible for issuance of the immigrant visa, the visa can be immediately issued. This proposed process change would significantly reduce the amount of time U.S. citizens are separated from their immediate alien relatives. In addition, the proposed changes would streamline the immigrant visa waiver process, thereby increasing efficiencies. 3. The Population Affected by the Proposed Rule As explained above, only certain immediate relatives undergoing consular processing for an immigrant visa who would be inadmissible based on accrual of unlawful presence at the time of the immigrant visa interview would be eligible to apply under the proposed waiver process. Immediate relatives of U.S. citizens who are able to adjust status in the United States are not affected. Immediate relatives who are eligible for adjustment of status in the United States generally include those who were admitted to the United States on nonimmigrant visas (student, tourist, etc.) or who were paroled, including those who are present in the United States after the expiration of their authorized periods of stay. In most instances, aliens present in the United States without having been admitted or paroled are not eligible to adjust their status and must leave the United States for immigrant visa processing at a U.S. Embassy or consulate abroad to immigrate to the United States. Since these aliens are present in the United States without having been admitted or paroled, many already have accrued more than 180 days of unlawful presence and, if so, would become inadmissible under the unlawful presence bars upon their departure from the United States to attend their immigrant visa interviews. While there may be limited exceptions, the affected population would consist almost exclusively of alien immediate relatives present in the United States without having been admitted or paroled. DHS does not maintain data on the number of immediate relatives present in the United States who would qualify under the proposed unlawful presence waiver process. The DHS Office of Immigration Statistics (DHS OIS) estimates that the population of unauthorized immigrants (those present without admission or parole) residing in the United States is approximately 10.8 million as of January While all persons affected by the proposed rule are within the estimated population of 10.8 million, it is estimated that only a portion are immediate relatives of U.S. citizens who meet the criteria required for the new process. Other estimates are equally inconclusive of the number of immediate relatives of U.S. citizens who are subject to the unlawful presence bars. For example, the Pew Hispanic Trust estimates that there are 9.0 million persons 12 living in mixed status families in the United States that include at least one unauthorized adult alien and at least one U.S.-born child. This, and associated information from the Pew Hispanic Trust, does not provide a reliable means for the calculation of how many of the individuals in these families are U.S. citizens rather than alien immediate relatives, or the proportion of persons with unlawful presence who are the immediate relatives of LPRs rather than U.S. citizens. 13 Nor do these data indicate how many persons within these families are under the age of or have alternative methods of normalizing their immigration status without having to leave the United States and, consequently, are unlikely to be affected by the proposed rule. Data from different sources cannot be reliably combined because of differences in their total estimates for 11 Department of Homeland Security, Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January Available at: publications/ois_ill_pe_2010.pdf. 12 Pew Hispanic Trust, Unauthorized Immigrants: Length of Residency, Patterns of Parenthood, December 2011, pg. 6. Available at pewhispanic.org/files/2011/12/unauthorized- Characteristics.pdf. 13 The proposed rule applies only to alien immediate relatives of U.S. citizens, not to alien relatives of lawful permanent residents. 14 In the Pew Hispanic Trust report Unauthorized Immigrants: Length of Residency, Patterns of Parenthood, families are defined as adults age 18 and older who live with their minor children (i.e., younger than 18) and unmarried, dependent children younger than 25. different categories, the estimation and collection methodologies used, or other reasons of incompatibility. Absent information on the number of aliens who are in the United States without having been inspected and admitted or paroled and who are immediate relatives of U.S. citizens, DHS cannot reliably estimate the affected population of the proposed rule. 4. Demand DHS expects that the proposed rule, once finalized and effective, will increase demand for both immigrant visa petitions for alien relatives and applications for waivers of inadmissibility. Existing demand is constrained by the current process that requires individuals to leave the United States and be separated for unpredictable and sometimes lengthy amounts of time from their immediate relatives in the United States in order to obtain an immigrant visa to become an LPR. Immediate relatives eligible for LPR status if issued a waiver of inadmissibility may be reluctant to avail themselves of the current process because of the length of time that they may be required to wait outside the United States before they can be admitted as LPRs. The proposed process would allow an immediate relative who meets the eligibility criteria of this proposed rule to apply for a provisional unlawful presence waiver and receive a decision on that application before departing the United States for a consular interview. The streamlined procedure of this proposed rule may reduce the reluctance of aliens who may wish to obtain an immigrant visa to become an LPR but are deterred by the lengthy separation from family members imposed by the current process and uncertainty related to the ultimate success of obtaining an approved inadmissibility waiver. The costs associated with normalizing a qualifying immediate relative s status also may be a constraint to demand. These current costs include: Petition for Alien Relative, Form I 130, to establish a qualifying relationship to a U.S. citizen; fee cost = $ Application for Waiver of Grounds of Inadmissibility, Form I 601, to obtain a waiver of inadmissibility for unlawful presence; fee cost = $ Fees quoted are as of December Source for DOS fees: types/types_1263.html#perm. Source for USCIS fees: menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=b1ae408b1c4b3210vgnvcm100000b92c a60arcrd&vgnextchannel=b1ae408b1c4b3210vgn VCM100000b92ca60aRCRD. AILA-DC 2012 FALL CONF. 700 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

393 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules Time and expense of preparing the evidence to support the extreme hardship requirements for a waiver of inadmissibility. The evidentiary requirements could include sworn statements from family members, friends and acquaintances, medical records, psychiatric/psychological records, school records, evidence of illness of family members, financial information and tax returns, letters from teachers, support letters from churches and community organizations, evidence of health and emotional problems that may result from the separation, and such other documentation; cost = variable. 4. Travel from the United States to the immediate relative s home country or country where the visa is being processed, and any additional living expenses required to support two households while awaiting an immigrant visa; cost = variable. 5. Immigrant visa processing fees paid to: (a) The Department of State ($330), processed on the basis of a USCIS-approved I 130 petition; and (b) USCIS ($165). Total fee cost = $ An Affidavit of Support Under Section 213A of the Act, Form I 864; fee cost = $ Immigrant visa background and security check surcharge per person applying for any immigrant visa category; fee cost = $ Other forms, affidavits, etc. as required for individual applications; cost = variable. The costs listed above are not new to this proposed rule; they are required under the current process. Under the proposed process, aliens would be required to submit biometrics after filing the provisional unlawful presence waiver application, along with the corresponding fee (currently $85.00). This biometric fee would be in addition to the visa security fee required by DOS for the immigrant visa application. The proposed requirement to submit biometrics, with the associated fee and travel costs, would be a small portion of the total costs of the visa application process. As there are no annual limitations on the number of immediate relative visas that can be issued, the increase in the annual demand for waivers would be determined by the size of the affected population and the increased propensity to apply. As previously mentioned, a potential increase in demand might be limited, as is current demand, by the costs previously noted. With the absence of an estimate of the affected population, we have calculated a preliminary estimate for the increase in demand based on historical records and assumptions on the range of demand. Forecasts of demand based on TABLE 1 HISTORICAL IMMIGRATION DATA FISCAL YEARS 2001 THROUGH 2010 historical volumes of immediate relatives who are seeking waivers for unlawful presence are limited, at best, due to the lack of data. Historical estimates show only those aliens who have taken the steps to obtain an immigrant visa to become LPRs. The data are silent, however, on that population of aliens who have not initiated action to become LPRs due to current uncertainties and risks. Therefore, we recognize that the estimates provided below may understate what would actually occur if this rule becomes effective. The current level of demand, shown in Table 1, is a result of the existing constraints described previously: The possibility of lengthy separation of immediate relatives and their U.S. citizen relatives; uncertainty of the ultimate success of obtaining an approved inadmissibility waiver; and the financial constraints (costs). Because of the variability in timing between when immigrant visa petitions and waiver applications are submitted and adjudicated and the time when an immigrant visa is issued, comparisons between the totals within a single year are not meaningful. Fiscal year Petitions for alien relative, Form I 130 Immediate relative visas issued Ineligibility finding 16 Ineligibility overcome , ,087 5,384 6, , ,142 2,555 3, , ,760 3,301 1, , ,724 4,836 2, , ,432 7,140 2, , ,187 13,710 3, , ,323 15,312 7, , ,848 31,069 16, , ,517 24,886 12, , ,947 22,093 18, year average , ,297 13,029 7,432 Ineligibility Findings overcome (10 year average)... n/a n/a n/a 57.0% Note: Sums may not total due to rounding. Sources: Petitions for Alien Relative, Form I 130, from USCIS. Immediate relative visas issued are from individual annual Report(s) of the Visa Office, Department of State Visa Statistics, accessible at Ineligibility data are also from the individual annual report(s) of the Visa Office, Department of State Visa Statistics and appears in Table XX of each annual report. TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 As is evident, each of the data sets in Table 1 demonstrates a wide variability. 16 Both the Ineligibility Finding and Ineligibility Overcome columns refer only to ineligibility in which the grounds of inadmissibility were the 3- year or the 10-year unlawful presence bar. This figure is not limited to immigrant petitioners who are immediate relatives of U.S. citizens and includes relatives of LPRs. Ineligibility findings were low between 2001 and 2005/2006 because many individuals were not seeking immigrant visas through the consular process overseas; instead, they adjusted to lawful permanent resident status stateside under INA section 245(i). 17 Id. Ineligibility Findings/Ineligibility Overcome includes immediate relatives who are not affected The estimate of future demand under the new process would be determined by the number of ineligibility findings. The data for Ineligibility Findings and by the proposed rule. Comparisons between the totals of Ineligibility Findings/Ineligibility Overcome within a single year are not meaningful because of the variability in timing between when an ineligibility finding is made and when (and if) it is overcome. 18 The number of Petitions for Alien Relative, Form I 130, filed in 2001 is high because many filed petitions in anticipation of the INA section 245(i) sunset date, which occurred on April 30, Ineligibility Overcome in Table 1 refer only to ineligibility where the grounds of inadmissibility were the 3-year or the 10-year unlawful presence bar. This data, however, also includes immediate relatives of LPRs who are not affected by this rule. DHS has provided the data in Table 1 to provide historical context noting that the last three years of ineligibility findings are well above the 10-year historical average. For this reason, DHS used the estimate for the future filings for waivers of inadmissibility made by the USCIS AILA-DC 2012 FALL CONF. 701 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

394 19916 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules Office of Performance and Quality (OPQ), Data Analysis and Reporting Branch, as the basis for the estimated future filings. The current OPQ estimate for future waivers of inadmissibility is approximately 24,000 per year. Currently, 80 percent (or 19,200) of all waivers of inadmissibility are filed on the basis of inadmissibility due to the unlawful presence bars. 19 This estimate is further confirmed when examining the most recent 5-year period between FY 2006 FY 2010 where the average unlawful presence ineligibility finding is approximately 21,400. In light of the recent upward trend of immediate relative visas issued and ineligibility findings presented in Table 1, OPQ s estimate of 19,200 applications for waivers of unlawful presence represents as reasonable of an approximation as possible for future demand based on available data of the current waiver process. DHS anticipates that the changes proposed would encourage immediate relatives who are unlawfully present to initiate actions to obtain an immigrant visa to become LPRs when they otherwise would be reluctant to under the current process. As confidence in the new process increases, demand would be expected to trend upward. The DHS preliminary estimates were formulated based on general assumptions of the level of constraints on demand removed by the proposed rule. DHS does not know of any available data that would enable a calculation of the increases in filing propensities or an increase in the number of inadmissibility findings or the percentage of inadmissibility findings where the inadmissibility bar is overcome. Table 2 indicates the estimate of demand under the current process. This is the baseline demand expected in the absence of the proposed rule. TABLE 2 BASELINE ESTIMATES OF GROWTH IN PETITIONS FOR ALIEN RELATIVES AND INELIGIBILITY FINDINGS BASED ON UNLAWFUL PRESENCE UNDER THE CURRENT PROCESS Fiscal year Petitions for alien relative, Form I Ineligibility finding 21 Year ,510 19,665 Year ,340 20,142 Year ,410 20,630 Year ,720 21,130 Year ,280 21,642 Year ,100 22,167 Year ,180 22,704 Year ,530 23,255 Year ,150 23,818 Year ,050 24, Year Totals... 4,527, ,549 Note: Sums may not total due to rounding. Based on the data available on requests for waivers under the current process, Table 2 forecasts the number of findings of inadmissibility due to accrual of unlawful presence. The results presented in Table 2 are meant to show forecasts for future demand for waivers due to unlawful presence bars under the current process. DHS assumes that in every case where a consular officer determines inadmissibility based on unlawful presence, the alien would apply for a waiver. Thus, Table 2 represents the baseline totals we would expect in the absence of the proposed waiver process. In these calculations, the petitions for an alien relative made by U.S. citizens are expected to increase annually by the 2.4 percent compound annual growth rate for the undocumented population for the previous 10 years based on reports by the DHS OIS. 22 This is an imperfect calculation, as the undocumented population has declined since its peak in 2007, 23 but because of the data association problems noted previously, DHS used the 10-year (long term) compound average growth rate. The ineligibility findings in Table 2 are calculated using the estimate of 19,200 average annual waivers filed on the basis of unlawful presence, which equates to ineligibility findings for every alien relative petition based on the 10-year average. Again, these calculations are imperfect since they are based on immigrant visas granted for the alien relative population (both immediate relative and family preference). DHS does not have data available that would permit an estimation of the escalation of change in this variable. Thus, this estimate of future petitions for alien relatives and ineligibility findings is based on a range of assumptions concerning the current constraint on demand. As a result, Table 3 provides a scenario analysis utilizing estimates of various amounts of constraint on demand. For example, an assumption that demand is currently constrained by 25 percent would mean that there would be a 25 percent increase from the baseline in the number of I 601A applications for each year under the proposed rule. The findings of this range analysis are presented in Table 3. TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 19 The 80 percent estimate was calculated by USCIS based on data from all I 601s completed by overseas offices from August 2010 to October 28, 2011 and comparing those that listed only unlawful presence as an inadmissibility ground. 20 The first year estimate is the 10 year average of 395,919 multiplied by the 2.4 percent compound annual growth rate for the undocumented population for the previous 10 years reported in the DHS Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010, pg. 1. Subsequent years are increased at the same 2.4 percent growth rate. As a comparison, the U.S. population as a whole rose at a compound annual growth rate of percent over the same period. 21 Ineligibility Findings are calculated at the USCIS estimate of per 100,000 petitions for an alien relative. 22 DHS Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010, pg. 1. The 2.4 percent (rounded) compound annual growth rate is calculated from the estimated populations of unauthorized immigrants living in the United States in 2000 (8.5 million) and in 2010 (10.8 million). 23 Id. AILA-DC 2012 FALL CONF. 702 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

395 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TABLE 3 PRELIMINARY ESTIMATES OF INADMISSIBILITY FINDINGS REQUIRING AN UNLAWFUL PRESENCE WAIVER, FORM I 601A ASSOCIATED WITH THE INCREASED DEMAND OF THE PROPOSED RULE Year Expected demand for Form I 601A with current constrained demand of 25 Percent 50 Percent 75 Percent 90 Percent Year ,581 29,498 34,414 37,364 Year ,177 30,213 35,248 38,269 Year ,788 30,945 36,103 39,197 Year ,413 31,695 36,978 40,147 Year ,053 32,463 37,873 41,120 Year ,709 33,250 38,792 42,117 Year ,380 34,056 39,733 43,138 Year ,068 34,882 40,696 44,184 Year ,773 35,727 41,682 45,255 Year ,494 36,593 42,692 46, Year Totals , , , ,143 Note: Numbers may not total due to rounding. Table 4 is the expected increase in inadmissibility waiver applications due to the proposed rule. These estimates are obtained by subtracting the baseline estimates in Table 2 (without the proposed rule) from the preliminary estimates under the proposed rule in Table 3. TABLE 4 PRELIMINARY ESTIMATES OF THE ADDITIONAL INELIGIBILITY FINDINGS REQUIRING AN INADMISSIBILITY WAIVER UNDER THE PROPOSED RULE [Induced demand] 24 Year Additional ineligibility findings requiring an inadmissibility waiver with current constrained demand of 25 Percent 50 Percent 75 Percent 90 Percent Year ,916 9,833 14,749 17,699 Year ,035 10,071 15,106 18,128 Year ,158 10,315 15,473 18,567 Year ,283 10,565 15,848 19,017 Year ,411 10,821 16,232 19,478 Year ,542 11,083 16,625 19,950 Year ,676 11,352 17,028 20,434 Year ,814 11,627 17,441 20,929 Year ,955 11,909 17,864 21,436 Year ,099 12,198 18,296 21, Year Totals... 54, , , ,594 Note: Numbers may not total due to rounding. TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 5. Costs The proposed rule would require provisional waiver applicants to submit biometrics to USCIS. This is the only new cost applicants would incur under the proposed provisional unlawful presence waiver process in comparison to the current waiver process. The other costs of the proposed rule emanate from the increase in the demand created by the proposed rule. These other costs include the fees and preparation costs for forms prepared by individuals who would not file under the current rule. For the biometric collection, the alien immediate relative would incur the 24 The increased ineligibility findings in Table 4 are the difference in ineligibility findings from the different assumptions of the level of constrained demand in Table 3 and the baseline ineligibility findings shown in Table 2. following costs associated with submitting biometrics with an application for the provisional unlawful presence waiver: The required USCIS fee and the opportunity and mileage costs of traveling to a USCIS ASC to have the biometric recorded. The current USCIS fee for collecting and processing biometrics is $ In addition, DHS estimates the opportunity costs for travel to an ASC in order to have the biometric recorded based on the cost of travel (time and mileage) plus the average wait time to have the biometric collected. While travel times and distances will vary, DHS estimates that the average round-trip to an ASC will be 50 miles, and that the average time for that trip will be 2.5 hours. DHS estimates that an alien will wait an average of one hour for service and to have biometrics collected. DHS recognizes that the individuals impacted by the proposed rule are unlawfully present and are generally not eligible to work; however, consistent with other DHS rulemakings, we use wage rates as a mechanism to estimate the opportunity or time valuation costs associated with the required biometric collection. The Federal minimum wage is currently $7.25 per hour. 25 In order to anticipate the full opportunity cost of providing biometrics, DHS multiplied 25 U.S. Dep t of Labor, Wage and Hour Division. The minimum wage is as of July 24, Bureau of Labor Statistics, Occupational Employment and Wages May 2010 National Occupational Employment and Wage Estimates (May 17, 2011), available at: minimumwage.htm. news.release/pdf/ocwage.pdf. AILA-DC 2012 FALL CONF. 703 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

396 19918 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules the minimum hourly wage rate by 1.44 to account for the full cost of employee benefits such as paid leave, insurance, and retirement, which equals $10.44 per hour. 26 In addition, the cost of travel includes a mileage charge based on the estimated 50 mile round trip at the GSA rate of $0.51 per mile, which equals $25.50 for each applicant. Using an opportunity cost of time of $10.44 per hour and the 3.5 hour estimated time for travel and service and the mileage charge of $25.50, DHS estimates that the cost per provisional waiver applicant to be $62.04 for travel to and service at the ASC. 27 When the $85.00 biometric fee is added, the total estimated additional cost per provisional unlawful presence waiver over the current waiver process is $ All other fees charged by USCIS and DOS to apply for immediate relative visas remain the same under the current and proposed processes. 28 The incremental costs of the biometric requirement of the rule are computed as the $ cost per provisional unlawful presence waiver multiplied by the total number of applicants for provisional waivers applying after the proposed rule is finalized. This population is represented in Table 3. The incremental costs of the additional biometric fee are shown in Table 5. TABLE 5 COSTS OF PROPOSED BIOMETRIC REQUIREMENT TO IMMEDIATE RELATIVES FILING A PROVISIONAL WAIVER APPLICATION [Table 3 multiplied by $147.04] Year Additional inadmissibility waiver application fees with current constrained demand of 25 Percent 50 Percent 75 Percent 90 Percent Year 1... $3,614,451 $4,337,342 $5,060,232 $5,493,966 Year ,702,070 4,442,484 5,182,898 5,627,146 Year ,791,827 4,550,193 5,308,558 5,763,577 Year ,883,724 4,660,468 5,437,213 5,903,260 Year ,977,849 4,773,418 5,568,988 6,046,330 Year ,074,291 4,889,149 5,704,007 6,192,922 Year ,173,051 5,007,661 5,842,271 6,343,037 Year ,274,217 5,129,061 5,983,904 6,496,811 Year ,377,791 5,253,349 6,128,907 6,654,242 Year ,483,859 5,380,631 6,277,403 6,815, Year Totals Undiscounted... 40,353,130 48,423,756 56,494,382 61,336, Year Totals Discounted at 7.0 percent... 27,967,676 33,561,211 39,154,746 42,510, Year Totals Discounted at 3.0 percent... 34,221,714 41,066,057 47,910,400 52,017,006 Note: Numbers may not total due to rounding. In addition to the costs of the biometric requirement, DHS expects that the proposed rule will induce an increase in demand for immediate relative visas, which will generate new fees paid to the USCIS and DOS. As the only new requirement imposed by this rule on provisional waiver applicants compared with the current waiver process is biometrics, fees collected for filing forms that are already required (such as the Form I 130) are not costs of this rule. The new fees are those generated by the additional demand shown in Table 4 and are transfers made by applicants to USCIS and DOS to cover the cost of processing the forms. In addition to the fees, there are nominal costs associated with completing the forms. We estimate the amount of these fees and their associated preparation costs to give a more complete estimate of the impact of this rule. The additional fees and preparation costs are shown in Table 6. In determining the preparation cost for the forms, different labor rates were used depending on the citizenship status of the petitioner. If the form is completed by the alien immediate relative (Form I 601A), the loaded minimum wage of $10.44 per hour was used. If the form is completed by a U.S. citizen, we used the mean hourly wage for all occupations as reported by the Bureau of Labor Statistics and then adjusted that wage upward to account for the costs of employee benefits, such as annual leave, for a fully loaded hourly wage rate of $ The times to complete the forms are based on the USCIS form instructions for the individual forms. These costs are calculated by the formula: 1. Cost of Form I 130: Preparation cost = ($ hours) = $46.12; USCIS fee to cover processing costs = $ Total cost = $ Cost of Form I 601A: Preparation cost = ($ hours) = $15.66; USCIS fee to cover processing costs = $ Total cost = $ Cost of Form I 864: Preparation cost = ($ hours) = $184.46; DOS fee to cover processing costs = $ Total cost = $ Cost of Immigrant Visa Processing Fees: DOS fee to cover processing costs = $330; USCIS fee to cover processing costs = $165. Total cost = $ Cost of Visa Security fee: Preparation cost = DOS fee to cover processing costs = $ Based on the above, the total costs per application: ($ ) = $1, TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 26 U.S. Department of Labor, Bureau of Labor Statistics, Economic News Release, Table 1. Employer costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group, March 2011, viewed online at ecec.t01.htm. 27 ($10.44 per hour 3.5 hours) + ($0.51 per mile 50 miles) = $ The proposed Application for a Provisional Waiver of Inadmissibility, Form I 601A, would carry the same USCIS fee as Form I The rate is calculated by multiplying the $21.35 average hourly wage for all occupations May 2010 (available at oes_nat.htm# ) by the 1.44 fully loaded multiplier. AILA-DC 2012 FALL CONF. 704 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

397 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TABLE 6 COSTS FOR PREPARING AND FILING USCIS AND DOS FORMS [Table 3 multiplied by $1,908.24] Year Additional preparation costs and filing fees with current constrained demand of 25 Percent 50 Percent 75 Percent 90 Percent Year 1... $9,381,448 $18,762,897 $28,144,345 $33,773,214 Year ,608,865 19,217,730 28,826,595 34,591,914 Year ,841,834 19,683,667 29,525,501 35,430,601 Year ,080,355 20,160,710 30,241,065 36,289,278 Year ,324,660 20,649,320 30,973,979 37,168,775 Year ,574,980 21,149,960 31,724,940 38,069,927 Year ,831,315 21,662,630 32,493,945 38,992,734 Year ,093,896 22,187,793 33,281,689 39,938,027 Year ,362,724 22,725,449 34,088,173 40,905,808 Year ,638,030 23,276,060 34,914,091 41,896, Year Totals Undiscounted ,738, ,476, ,214, ,057, Year Totals Discounted at 7.0 percent... 72,591, ,182, ,773, ,328, Year Totals Discounted at 3.0 percent... 88,823, ,647, ,471, ,765,613 Note: Sums may not total due to rounding. The totals in Table 6 are calculated by multiplying the induced demand shown in Table 4 by the $1, shown above. We acknowledge there are additional costs to the existing process, such as travel from the United States to the immediate relative s home country where the immigrant visa is being processed and the additional expense of supporting two households while awaiting an immigrant visa. Such costs are highly variable and depend on the circumstances of the specific petitioner. We did not estimate the impacts of these variable costs. To the extent that this rule allows immediate relatives to reduce the time spent in their home country, this rule would allow for such existing costs to be reduced and these savings represent a benefit of this rule. The total cost to applicants is shown in Table 7 as the sum of Table 5 and Table 6. TABLE 7 TOTAL COSTS TO APPLICANTS OF THE PROPOSED RULE [Table 5 plus Table 6] Year Estimated total cost current constrained demand of 25 Percent 50 Percent 75 Percent 90 Percent Year 1... $12,995,900 $23,100,239 $33,204,577 $39,267,181 Year ,310,935 23,660,213 34,009,492 40,219,059 Year ,633,661 24,233,860 34,834,059 41,194,178 Year ,964,079 24,821,178 35,678,278 42,192,538 Year ,302,508 25,422,738 36,542,968 43,215,105 Year ,649,271 26,039,109 37,428,947 44,262,850 Year ,004,366 26,670,291 38,336,216 45,335,771 Year ,368,114 27,316,854 39,265,594 46,434,838 Year ,740,515 27,978,798 40,217,080 47,560,050 Year ,121,890 28,656,692 41,191,494 48,712, Year Totals Undiscounted ,091, ,899, ,708, ,393, Year Totals Discounted at 7.0 percent ,558, ,743, ,928, ,839, Year Totals Discounted at 3.0 percent ,045, ,713, ,381, ,782,619 Note: Sums may not total due to rounding. TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 Costs to the Federal Government include the possible costs of additional adjudication personnel associated with increased volume and the associated equipment (computers, telephones) and occupancy costs (if additional space is required). However, we expect these costs to be offset by the additional fee revenue collected for form processing. Consequently, this rule does not impose additional costs on the Federal Government. 6. Benefits The benefits of the proposed rule are the result of streamlining the immigrant visa waiver process. The primary benefits of the proposed changes are qualitative and result from reduced separation time for U.S. citizens and their alien relatives. In addition to the obvious humanitarian and emotional benefits derived from family reunification, there also would be significant financial benefits accruing to the U.S. citizen due to the shortened period he or she would have to financially support the alien relative abroad. DHS is currently unable to estimate the average duration of time an immediate relative must spend abroad while awaiting waiver adjudication under the current process, and so cannot predict how the time spent apart would be reduced under the proposed provisional waiver process. As a result of streamlining the unlawful presence waiver process, there also would be efficiencies realized by both USCIS and DOS. The proposed process would enable USCIS to process and adjudicate the provisional unlawful presence waivers domestically. As a result, USCIS could move a large part of its workload to Service Centers or field offices with resources that are less expensive than overseas staffing resources and that are flexible enough to AILA-DC 2012 FALL CONF. 705 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

398 TKELLEY on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules accommodate filing surges. In addition, the proposed process would allow DOS to review these cases once, as opposed to the current unlawful presence process where these cases are reviewed twice, at a minimum. DHS anticipates that the new process will make the immigrant visa process more efficient. DHS encourages public comment on the benefits, both quantitative and qualitative, of this proposed rule. D. Executive Order This proposed rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. E. Executive Order Civil Justice Reform Section 3(c) of Executive Order requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DHS has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order F. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA), Public Law , all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting and recordkeeping requirements inherent in a rule. See Public Law , 109 Stat. 163 (May 22, 1995). This proposed rule requires that an applicant requesting a provisional unlawful presence waiver complete an Application for Provisional Waiver of Unlawful Presence, Form I 601A. This form is considered an information collection and is covered under the PRA. DHS will be submitting an information collection request to OMB for review and approval under the PRA. Accordingly, DHS is requesting comments on this information collection for 60 days until June 1, Comments on this information collection should address one or more of the following four points: (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency s estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of information collection: a. Type of information collection: Revised information collection. b. Abstract: This collection will be used by individuals who file a request for a provisional unlawful presence waiver of the inadmissibility grounds under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). Such individuals are subject to biometric collection in connection with the filing of the waiver. c. Title of Form/Collection: Application for Provisional Unlawful Presence Waiver. d. Agency form number, if any, and the applicable component of the Department of Homeland Security sponsoring the collection: Form I 601A, U.S. Citizenship and Immigration Services. e. Affected public who will be asked or required to respond: Individuals or Households: Individuals who are immediate relatives of U.S. citizens and who are applying from within the United States for a waiver of inadmissibility under INA section 212(a)(9)(B)(v) prior to obtaining an immigrant visa abroad. f. An estimate of the total numbers of respondents: 38,277. g. Hours per response: 1.5 hours per response. h. Total Annual Reporting Burden: 57,416. Comments concerning this form can be submitted to Sunday Aigbe, Chief, Regulatory Products Division, Office of the Executive Secretariat, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC G. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C , as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law (March 29, 1996), requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. The term small entities comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. DHS has reviewed this regulation in accordance with the Regulatory Flexibility Act and certifies that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is that this rule directly regulates individuals who are the immediate relatives of U.S. citizens seeking to apply for an unlawful presence waiver of inadmissibility in order to be eligible to obtain an immigrant visa outside the United States. The impact is on these persons as individuals, so that they are not, for purposes of the Regulatory Flexibility Act, within the definition of small entities established by 5 U.S.C. 601(6). List of Subjects 8 CFR Part 103 Administrative practice and procedures, Authority delegations (government agencies), Freedom of Information; Privacy, Reporting and recordkeeping requirements, Surety bonds. 8 CFR Part 212 Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements. Accordingly, DHS proposes to amend chapter I of title 8 of the Code of Federal Regulations as follows. PART 103 POWERS AND DUTIES; AVAILABILITY OF RECORDS 1. The authority citation for part 103 continues to read as follows: Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356, 1365b; 31 U.S.C. 9701; Pub. L , 116 Stat (6 U.S.C. 1 et seq. ); E.O , 47 FR 14874, 15557, 3 CFR, 1982 Comp., p.166; 8 CFR part Section is amended by revising paragraph (b)(1)(i)(aa) to read as follows: Fees. * * * * * (b) * * * (1) * * * (i) * * * AILA-DC 2012 FALL CONF. 706 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

399 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 (AA) Application for Waiver of Ground of Inadmissibility (Form I 601) and Application for Provisional Unlawful Presence Waiver (I 601A). For filing an application for waiver of grounds of inadmissibility or an application for a provisional unlawful presence waiver: $585. * * * * * PART 212 DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE 3. The authority citation for part 212 continues to read as follows: Authority: 8 U.S.C and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C note (section 7209 of Pub. L ); 8 CFR part 2. Section 212.1(q) also issued under section 702, Pub. L , 122 Stat. 754, Section is amended by: a. Revising paragraphs (a)(1), (a)(3), and (a)(4); and b. Adding paragraph (e). The revisions and addition read as follows: Waivers of certain grounds of inadmissibility. (a)(1) Application. Except as provided by 8 CFR 212.7(e), an applicant for an immigrant visa, adjustment of status, or a K or V nonimmigrant visa who is inadmissible under any provision of section 212(a) of the Act for which a waiver is available under section 212 of the Act may apply for the related waiver by filing the form designated by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1), and in accordance with the form instructions. Certain immigrants may apply for a provisional unlawful presence waiver of inadmissibility as specified in 8 CFR 212.7(e). * * * * * (3) Decision. If the waiver application is denied, USCIS will provide a written decision and notify the applicant and his or her attorney or accredited representative and will advise the applicant of appeal procedures, if any, in accordance with 8 CFR The denial of a provisional unlawful presence waiver is governed by 8 CFR 212.7(e). (4) Validity. (i) A provisional unlawful presence waiver granted according to paragraph (e) of this section is valid subject to the terms and conditions as specified in paragraph (e). In any other case, approval of an immigrant waiver of inadmissibility under this section applies only to the grounds of inadmissibility, and the related crimes, events, or incidents that are specified in the application for waiver. (ii) Except for K 1 and K 2 nonimmigrants and aliens lawfully admitted for permanent residence on a conditional basis, an immigrant waiver of inadmissibility is valid indefinitely, even if the applicant later abandons or loses lawful permanent resident status. (iii) For a K 1 or K 2 nonimmigrant, approval of the waiver is conditioned on the K 1 nonimmigrant marrying the petitioner; if the K 1 nonimmigrant marries the K nonimmigrant petitioner, the waiver becomes valid indefinitely, subject to paragraph (a)(4)(iv) of this section, even if the applicant later abandons or loses lawful permanent resident status. If the K 1 does not marry the K nonimmigrant petitioner, the K 1 and K 2 nonimmigrants remain inadmissible for purposes of any application for a benefit on any basis other than the proposed marriage between the K 1 and the K nonimmigrant petitioner. (iv) For an alien lawfully admitted for permanent residence on a conditional basis under section 216 of the Act, removal of the conditions on the alien s status renders the waiver valid indefinitely, even if the applicant later abandons or loses lawful permanent resident status. Termination of the alien s status as an alien lawfully admitted for permanent residence on a conditional basis also terminates the validity of a waiver of inadmissibility that was granted to the alien. Separate notification of the termination of the waiver is not required when an alien is notified of the termination of residence under section 216 of the Act, and no appeal will lie from the decision to terminate the waiver on this basis. If the alien challenges the termination in removal proceedings, and the removal proceedings end in the restoration of the alien s status, the waiver will become effective again. (v) Nothing in this subsection precludes USCIS from reopening and reconsidering a decision if the decision is determined to have been made in error. * * * * * (e) Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives. The provisions of this paragraph (e) are applicable to certain aliens who are pursuing consular immigrant visa processing as an immediate relative of a U.S. citizen. (1) In general. USCIS may adjudicate applications for a provisional unlawful presence waiver of inadmissibility based on section 212(a)(9)(B)(v) of the Act filed by eligible aliens described in paragraph (e)(2) of this section. USCIS will only approve such provisional unlawful presence waiver applications in accordance with the conditions outlined in paragraph (e) of this section. Consistent with section 212(a)(9)(B)(v) of the Act, the decision whether to approve a provisional unlawful presence waiver application is discretionary. (2) Eligible aliens. Except as provided in paragraph (e)(3) of this section, an alien may be eligible to apply for and receive a provisional unlawful presence waiver for the grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of the Act if he or she: (i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver, and for biometrics collection at a USCIS Application Support Center; (ii) Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview; (iii) Qualifies as an immediate relative under section 201(b)(2)(A)(i) of the Act; (iv) Is the beneficiary of an approved immediate relative petition; (v) Has a case pending with the Department of State based on the approved immediate relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt; (vi) Will depart from the United States to obtain the immediate relative immigrant visa; and (vii) Meets the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act, except that the alien must show extreme hardship to his or her U.S. citizen spouse or parent. (3) Ineligible Aliens. Notwithstanding paragraph (e)(2) of this section, an alien is ineligible to apply for or receive a provisional unlawful presence waiver under paragraph (e) of this section if: (i) USCIS has reason to believe that the alien may be subject to grounds of inadmissibility other than unlawful presence under section 212(a)(9)(B)(i)(I) or (II) of the Act at the time of the immigrant visa interview with the Department of State; (ii) The alien is under the age of 17; (iii) The alien does not have a case pending with the Department of State, based on the approved immediate relative petition, and has not paid the immigrant visa processing fee; (iv) The alien has been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad at the time the application is received by USCIS; AILA-DC 2012 FALL CONF. 707 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

400 TKELLEY on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules (v) The alien is in removal proceedings that have not been terminated or dismissed; (vi) The alien has not had the charging document (Notice to Appear) to initiate removal proceedings cancelled; (vii) The alien is in removal proceedings that have been administratively closed but not subsequently reopened for the issuance of a final voluntary departure order; (viii) The alien is subject to a final order of removal issued under section 235, 238, or 240 of the Act or any other provision of law (including an in absentia removal order under section 240(b)(5) of the Act); (ix) The alien is subject to reinstatement of a prior removal order under section 241(a)(5) of the Act; (x) The alien has a pending application with USCIS for lawful permanent resident status; or (xi) The alien has previously filed a provisional unlawful presence waiver application; (4) Filing. (i) An application for a provisional waiver of the grounds of inadmissibility for the unlawful presence bars under section 212(a)(9)(B)(i)(I) or (II) of the Act must be filed in accordance with 8 CFR part 103 and on the form designated by USCIS. The prescribed fee under 8 CFR 103.7(b)(1) and supporting documentation must be submitted in accordance with the form instructions. (ii) An application for a provisional unlawful presence waiver application will be rejected and the fee and package returned to the alien if the alien: (A) Fails to pay the required fees for the waiver application or to pay the correct fee; (B) Fails to sign the waiver application; (C) Fails to provide his or her family name, domestic home address, and date of birth; (D) Is under the age of 17 years; (E) Does not include evidence of an approved petition that classifies the alien as an immediate relative of a U.S. citizen; (F) Does not include a copy of the fee receipt evidencing that the alien has paid the immigrant visa processing fee to DOS; (G) Has indicated on the provisional unlawful presence waiver application that an immigrant visa interview has been scheduled with DOS; or (H) Has not indicated on the provisional unlawful presence waiver application that the qualifying relative is a U.S. citizen spouse or parent. (5) Biometrics. (i) All aliens who apply for a provisional unlawful presence waiver under this section will be required to provide biometrics in accordance with 8 CFR and , as specified on the form instructions. (ii) Failure to appear for biometrics capture. If an alien fails to appear for biometrics capture, the provisional unlawful presence waiver application will be considered abandoned and denied pursuant to 8 CFR 103.2(b)(13). The alien may not appeal or file a motion to reopen or reconsider an abandonment denial under 8 CFR (6) Burden of proof. The alien has the burden to establish eligibility for the provisional unlawful presence waiver as described in this paragraph of this section, and under section 212(a)(9)(B)(v) of the Act, including that the alien merits a favorable exercise of the Secretary s discretion. (7) Adjudication. USCIS will adjudicate the provisional unlawful presence waiver application in accordance with this paragraph of this section and section 212(a)(9)(B)(v) of the Act. USCIS also may require the alien and the U.S. citizen petitioner to appear for an interview pursuant to 8 CFR 103.2(b)(9). If USCIS finds that the alien does not meet the eligibility requirements for the provisional unlawful presence waiver as described in this paragraph (e), USCIS will deny the waiver application. Notwithstanding 8 CFR 103.2(b)(16), USCIS may deny an application for a provisional unlawful presence waiver without prior issuance of a request for evidence or notice of intent to deny. (8) Notice of Decision. USCIS will notify the alien or the alien s attorney of record or accredited representative of the decision in accordance with 8 CFR 103.2(b)(19). USCIS also may notify the Department of State. Denial of an application for a provisional unlawful presence waiver is without prejudice to the alien filing a waiver application under paragraph (a)(1) of this section after the immigrant visa interview overseas. Accordingly, denial of a request for a provisional unlawful presence waiver is not a final agency action for purposes of section 10(c) of the Administrative Procedure Act, 5 U.S.C (9) Withdrawal of waiver requests. An alien may withdraw his or her request for a provisional unlawful presence waiver at any time before the final decision, but the alien will not be permitted to later file a new provisional unlawful presence waiver. Once the case is withdrawn, USCIS will close the case and notify the alien and his or her attorney or accredited representative. (10) Appeals and Motions to Reopen. There is no administrative appeal from a denial of a request for a provisional unlawful presence waiver under this section. The alien may not file, pursuant to 8 CFR 103.5, a motion to reopen or reconsider a denial of a provisional unlawful presence waiver application under this section. (11) Approval and Conditions. A provisional unlawful presence waiver granted under this section: (i) Does not take effect unless, and until, the alien who applied for and obtained the provisional unlawful presence waiver: (A) Departs from the United States; (B) Appears for an immigrant visa interview at a U.S. Embassy or consulate; and (C) Is determined to be admissible and otherwise eligible for an immigrant visa by a Department of State consular officer in light of the approved provisional unlawful presence waiver. (ii) Waives the alien s inadmissibility under section 212(a)(9)(B) of the Act only for purposes of the application for an immigrant visa and admission to the United States as an immediate relative of a U.S. citizen. (iii) Does not waive any ground of inadmissibility other than the grounds of inadmissibility under section 212(a)(9)(B)(i)(I) or (II) of the Act. (12) Validity. Until the provisional unlawful presence waiver takes full effect as provided in paragraph (e)(11) of this section, USCIS may reopen and reconsider its decision at any time. Once a provisional unlawful presence waiver takes full effect as defined in paragraph (e)(11), the period of unlawful presence for which the provisional unlawful presence waiver is granted is waived permanently and, in accordance with and subject to paragraph (a)(4) of this section, the waiver is valid indefinitely. (13) Automatic Revocation. The approval of a provisional unlawful presence waiver is revoked automatically if: (i) The consular officer determines at the time of the immigrant visa interview that the alien is inadmissible on grounds other than section 212(a)(9)(B)(i)(I) or (II) of the Act; (ii) The immigrant visa petition approval associated with the provisional unlawful presence waiver is at any time revoked, withdrawn, or rendered invalid but not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition; (iii) The immigrant visa registration is terminated in accordance with section 203(g) of the Act, and has not been AILA-DC 2012 FALL CONF. 708 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 4702 E:\FR\FM\02APP5.SGM 02APP5

401 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules reinstated in accordance with section 203(g) of the Act; or (iv) The alien, at any time, reenters or attempts to reenter the United States without being inspected and admitted or paroled. * * * * * Janet Napolitano, Secretary. [FR Doc Filed ; 8:45 am] BILLING CODE P TKELLEY on DSK3SPTVN1PROD with PROPOSALS5 AILA-DC 2012 FALL CONF. 709 VerDate Mar<15> :28 Mar 30, 2012 Jkt PO Frm Fmt 4701 Sfmt 9990 E:\FR\FM\02APP5.SGM 02APP5

402 U. S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC May 9, 2011 PM Policy Memorandum SUBJECT: Requests to Expedite Adjudication of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside the United States; Adjudicator s Field Manual (AFM) Update AD11-10 Purpose This Policy Memorandum (PM) provides guidelines on how U.S. Citizenship and Immigration Services (USCIS) processes requests to expedite the adjudication of Forms I-601 filed by individuals outside the United States. These guidelines will be included in the AFM Chapter 41.7 and in the revised version of International Operations Division Field Guidance for Form I-601 adjudications. Scope Unless specifically exempted herein, this memorandum applies to and is binding on all USCIS employees adjudicating Forms I-601 filed by individuals outside the United States. Authority 8 CFR governs USCIS adjudication of Form I-601. Background It has been USCIS s longstanding policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application. Consistent with this policy, an applicant may request that the adjudication of a Form I-601 be expedited. Requests to expedite in the Form I-601 adjudication context present unique challenges. Almost all Form I-601 applicants outside the United States have an interest in expeditious processing given that most are required to establish extreme hardship to a qualifying family member in order for USCIS to consider whether to exercise its discretion to waive the bar to an applicant s entry into the United States. However, some applicants may be experiencing extraordinary circumstances that present the kind of compelling and urgent, time-sensitive reasons that merit expedited processing of a Form I-601. This memorandum provides guidelines on responding to requests to expedite Forms I-601 filed by applicants overseas. Policy Subject to case management requirements and resource constraints, USCIS managers overseas may, in extraordinary circumstances, exercise discretion on a case-by-case basis to approve a request to AILA-DC 2012 FALL CONF. 710

403 PM : Requests to Expedite Adjudication of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside the United States; AFM Update AD11-10 Page 2 expedite adjudication of a Form I The strong desire to immigrate to the United States as soon as possible is not by itself extraordinary. The types of extraordinary circumstances that may, generally, merit expedited processing are those in which there are time-sensitive and compelling situations that necessitate the applicant s presence in the United States sooner than would be possible if the application were processed under normal processing times. There may also be other time-sensitive circumstances that merit expeditious processing for other reasons, principally where the failure to expedite the adjudication could result in significant delays in family reunification. For example, the applicant may be ineligible to receive a visa in the following month due to forecasted visa regression, and therefore faces an even more prolonged and unanticipated separation from family members if the application is not expedited. Similarly, the applicant may request that the case be expedited to prevent a child not covered by the Child Status Protection Act aging out before visa issuance. There also may be circumstances in which a prior USCIS error merits expeditious processing of a request. Implementation The AFM and the International Operations Division Field Guidance for Form I-601 adjudications are revised as follows: (1) A new Chapter 41.7 is added to read: 41.7 Expeditious Adjudication of Waivers of Inadmissibility. (a) Applications for Waiver of Inadmissibility Filed by Applicants in the United States. [Reserved] (b) Applications for Waiver of Inadmissibility by Applicants Outside the United States. (1) Applicability. The guidance set forth in this chapter applies to any applications for waiver of inadmissibility filed by an applicant who is outside the United States, including both applications adjudicated by Overseas Field Offices and applications filed from Canada and adjudicated by the Vermont Service Center. This guidance shall also apply to any Form I-212 application submitted in conjunction with a Form I-601 application for which there has been a request or decision to expedite processing. (2) Criteria. Subject to case management requirements and resource constraints, USCIS managers overseas may, in extraordinary circumstances, exercise discretion to decide on a case-bycase basis to approve a request to expedite adjudication of a Form I-601. The strong desire to immigrate to the United States as soon as possible is not, itself extraordinary. 1 When a Form I-212 application is submitted in conjunction with a Form I-601application, a request or decision to expedite the adjudication of the Form I-601 application will be treated as a request or decision to expedite the accompanying Form I-212 application. AILA-DC 2012 FALL CONF. 711

404 PM : Requests to Expedite Adjudication of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside the United States; AFM Update AD11-10 Page 3 The types of extraordinary circumstances that may, generally, merit expedited processing of a Form I-601 are those in which there are time-sensitive and compelling situations that necessitate the applicant s presence in the United States sooner than would be possible if the application were processed under normal processing times or other time-sensitive circumstances that nonetheless merit expeditious processing, principally where the failure to expedite the adjudication could result in significant delays in family reunification. Those situations may include, but are not limited to, situations in which the applicant establishes one or more of the following: The applicant has urgent and critical medical needs that cannot be addressed in the applicant s country; An applicant s family member in the United States has a serious medical condition and has urgent and critical medical needs related to that condition that require the applicant to assist the family member in the United States; The applicant is faced with urgent circumstances related to the death or serious illness of a family member; The applicant or qualifying family member is a particularly vulnerable individual due to age, serious medical condition, or disability and this vulnerability is exacerbated by the applicant s presence outside the United States; The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant s country; It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant s presence in the United States is urgently required for work with a U.S. government entity); or As described in a request from or for a member of the Armed Forces of the United States: o The applicant s qualifying family member is a member of the military who is deployed or will soon be deployed; and o The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant s absence from the United States on the applicant, the qualifying family member, or their children, if any. The above non-exhaustive list describes some examples of situations that may, depending on the facts of the case, merit a discretionary approval of a request to expedite adjudication of a waiver request. However, these are not the only circumstances that may AILA-DC 2012 FALL CONF. 712

405 PM : Requests to Expedite Adjudication of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside the United States; AFM Update AD11-10 Page 4 warrant expeditious processing. There may also be other time-sensitive circumstances that do not necessitate the applicant s presence in the United States sooner than would be possible under normal processing times, but that nonetheless merit expeditious processing. For example, the applicant may be ineligible to receive a visa in the following month due to forecasted visa regression and therefore faces an even more prolonged and unanticipated separation from family members if the application is not expedited. Similarly, the applicant may request that the case be expedited to prevent a child not covered by the Child Status Protection Act from aging out before visa issuance. There also may be circumstances in which a prior USCIS error merits expeditious processing of a request. (3) Documentation. Requests must include sufficient evidence to support the claimed need for expedited processing or an explanation of why that evidence is not available. For example, if the request is based on an urgent, serious medical condition, the applicant should provide a medical report. If the request is based on urgent need by a U.S. government entity to have the applicant in the United States, the applicant should provide a letter from the entity supporting the expedite request. (4) Public Information, Notices and Outreach. Overseas Field Office Directors will provide instructions for expediting requests on Department of State and USCIS web pages. All requests to expedite will be reviewed within 5 business days of receipt of the request and, if the decision is to approve the request to expedite, the applicant will be notified within 10 business days of receipt of the request. In particularly urgent cases, staff will make every effort to notify the applicant of an approval to expedite a request as soon as the decision to expedite has been made. Because of limited overseas resources and concerns that responding to all requests to expedite will divert those limited resources from timely adjudicating all applications, overseas field offices are not required to provide negative responses to requests to expedite. Overseas field offices will notify applicants that, if they do not receive a response to their request to expedite within 15 days from the date of notice of receipt of the request, their request to expedite may be presumed to be denied. This information will be posted on all overseas office websites. In addition, Overseas Field Office Directors will include this information on their auto-reply message that is sent out upon receipt of electronically received requests. In response to non-electronically submitted requests, overseas field offices will send out a notice of receipt that contains this same information. See Appendix Note: The Vermont Service Center (VSC) receives all Forms I-601 and I-212 filed by Canadian residents with the U.S. Embassy or Consulate in Canada. The Department of State forwards the Forms I-601 and I-212 to the VSC for adjudication. This guidance does not change existing filing instructions and the VSC will continue to send out appropriate CLAIMS3-generated notices for that workload. AILA-DC 2012 FALL CONF. 713

406 PM : Requests to Expedite Adjudication of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside the United States; AFM Update AD11-10 Page 5 (2) A new Appendix 41-5 is added to read: [SEE ATTACHED] (3) The AFM Transmittal Memoranda button is revised by adding, in numerical order, a new entry to read: AD /9/2011 Chapter 41.7 Appendix 41-5 Adds guidance on consideration of requests for expeditious adjudication of Forms I-601 filed overseas Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Contact Information Questions or suggestions regarding this PM should be addressed through appropriate channels to the International Operations Program Manager for Forms I-601. AILA-DC 2012 FALL CONF. 714

407 Appendix 41-5: Template for Notice of Receipt of Request to Expedite I-601 Processing for Applicants Outside the U.S. U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Name of Office Street Address City, Country Postal Code Notice of Receipt of Request to Expedite Form I-601 Processing for Applicant Residing Overseas Dear NAME OF APPLICANT: We have received your request to expedite the processing of your Application for Waiver of Grounds of Inadmissibility (Form I-601). Most Form I-601 applicants residing outside of the United States have a strong interest in expeditious processing, because they are claiming that their inability to reside in the United States is causing extreme hardship to a qualifying family member. We strive to process all cases within designated processing times. At this time, the average processing time for Forms I-601 in this office is [insert number of months]. Expedited processing is rarely granted. In order to receive the privilege of expedited processing, you must establish that there are time-sensitive and compelling circumstances that necessitate your presence in the United States prior to the average processing time. Please be advised that we are unable to respond to each individual request for expedited processing. You will receive notification if your request to expedite the processing of your Form I-601 is granted. If you have not received a response within 15 business days from the date of this letter, please presume that regrettably your request for expedited processing has been denied. For more information about the filing requirements for inadmissibility waivers, please visit the USCIS website at or [For Canadian applicants filing with the VSC, enter appropriate information for contacting customer service. For all applicants filing with USCIS overseas offices provide link to office website.] Sincerely, [Name] Field Office Director AILA-DC 2012 FALL CONF. 715

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414 Hardship Waivers a Checklist of Possible Evidence: Emotional / Psychological Hardship: Psychological Assessment Any other records of counseling or use of medication Personal Statements of close friends and family members Evidence showing affect on ability to perform job need to change jobs, take days off, etc? Medical Hardship: Medical records Letter from Qualifying Relative s physician Information from internet about condition / medication Financial Hardship: Paystubs Bank account statements Copies of monthly bills (rent, utilities, daycare, car payments, insurance, credit cards, etc.) Receipts of money sent abroad to support Qualifying Relative and/or other family members Expense sheet Country conditions: Economic Information lack of employment opportunities; average salaries; currency comparison World Bank; USAID Medical Care Information general availability and quality of medical care - WHO Educational Information general availability of public or affordable education opportunities Feasibility of Frequent Contact availability of internet & cell phones; typical cost of airfare (Expedia, Travelocity); typical cost of phone call Human rights conditions / current instability State Dept, Amnesty, HRW and recent news articles AILA-DC 2012 FALL CONF. 722

415 Effective Strategies for Presenting Extreme Hardship Arguments for Waivers By Lisa Johnson Firth I. Legal Standards: A. Extreme Hardship Defined: 1. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978); Matter of Ige, 20 I&N Dec. 880 (BIA 1994); and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). a. The presence of lawful permanent resident or United States citizen family ties to this country; b. The qualifying relative's family ties outside the United States; c. The conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries; d. The financial impact of departure from this country; and e. Significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. 2. Extreme hardship is not a definable term of fixed and inflexible meaning. Matter of Chumpitazi, 16 I. & N. Dec. 629 (BIA 1978). 3. Matters involving extreme hardship are instead evaluated on a case by case basis considering the facts and elements of each claim. See Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994); and Matter of OJO, 21 I&N Dec. 381, 383 (BIA 1996). 4. Certain factors may not be extreme when considered individually, but in combination can amount to extreme hardship. See Matter of O J O, 21 I&N Dec. 381, 383 (BIA 1996); Matter of Kao and Lin, 23 I&N Dec. 45, 51 (BIA 2001) (hardship of family separation or economic disadvantage can vary depending on circumstances of each case). 5. Extreme hardship must be shown in both circumstances where the qualifying relative will accompany the waiver applicant abroad or will remain without the applicant in the US. See Matter of Ige, supra. B. Favorable Exercise of Discretion 1. If extreme hardship is established, the applicant must also show that he or she merits a favorable exercise of discretion. See Matter of Mendez Morales, 21 I&N Dec. 296, 301 (BIA 1996). 2. Positive Discretionary Factors: a. Family ties; b. Duration of residence; c. Service in the U.S. armed forces; d. History of stable employment; e. Existence of property or business interests in the U.S.; f. Evidence of value and service to the community; g. Evidence of genuine rehabilitation; and h. Other evidence of good moral character. 3. Negative Discretionary Factors: a. Nature and underlying circumstances of the grounds of inadmissibility; AILA-DC 2012 FALL CONF. 723

416 i. e.g. Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (in making discretionary determination on a waiver, degree of fraud may be considered in the overall assessment of positive and negative factors); b. Nature, recentness, and seriousness of the criminal record; c. Presence of additional and significant violations of U.S. immigration laws; and d. Existence of criminal record. II. Proving Extreme Hardship A. Making the Argument for Extreme Hardship Practical Tips 1. Thorough questioning of client is critical. 2. Country condition reports are also often a necessity. 3. An indexed outline with article excerpts or summaries should be used to support a cover letter or brief. 4. If submitting an application to the Immigration Court, a brief or legal memo is recommended; if application is filed with USCIS, a good cover letter with a short summary setting forth the legal standard is sufficient: a. Outline strongest arguments for hardship (select a couple to really explain); and b. Summary paragraph on weaker hardship arguments. 5. Be sure to trouble spot and avoid any potential weak arguments: a. Any kind of normal circumstances that can be considered the natural effect of deportation b. Generalized arguments not specifically tied to qualifying relative (ex: failure to connect dots such as a qualifying adult parent stating that it hurts to watch alien s child suffer without the alien present) c. Failure to address all options (ex. Focusing exclusively on situation in the US without applicant and not addressing the qualifying relative s ability to relocate abroad with applicant). B. Working with Experts, especially Psychologists 1. Provide information to expert about what is expected from the evaluation; 2. Supply the expert with necessary documentation to understand the circumstances of the case; and 3. Review and edit report before finalized by psychologist. C. Documenting Hardship Factors 1. Psychological evaluation for qualifying relatives: a. BUT single interview or evaluation may be insufficient; b. Ongoing treatment and counseling may give a more persuasive view especially if the family has already been separated. 2. Keep a journal of the qualifying relative s behavior and reactions after separation or in the face of deportation. Document onset of weight gain, depression, sleeplessness, changing eating patterns, crying, etc. 3. Obtain and include medical, counseling and other reports or evaluations that demonstrate presence of hardship factors. 2 AILA-DC 2012 FALL CONF. 724

417 a. One of the strongest hardship arguments is if the qualifying relative has severe or major medical conditions requiring constant care which is not readily and affordable in the applicant s home country. b. Research and provide written materials on medical/psychological conditions. c. Obtain strong and detailed letters from care providers/doctors/counselors. d. Do not submit volumes of unintelligible medical reports. e. Help prepare declarations from qualifying relative and others explaining how the applicant needs to be present to provide care. f. Document why the qualifying relative cannot obtain proper medical care abroad (i.e. letters from consulates, country reports, letters from hospitals etc. stating that medical treatment is not available in that country or is unaffordable, or if applicable, that there is a strong stigma against people with that condition, such as in case of sexually transmitted disease like AIDS., 4. Be sure to include detailed declarations describing how important the applicant is in the lives of qualifying relatives. 5. Obtain and include school records of children, guidance counselor reports, police records, church records documenting change in a relative s behavior and / or inability to adapt to applicant s country (language, culture). 6. Country condition information demonstrating quality of schools, medical care, standard of living and cultural adaptation. Country reports are essential show crime, poverty, standard of living, poor schooling, war torn, gangs, etc., etc. 7. Document Financial Hardship if applicable: a. If it is based upon not being able to support the family without the applicant s income: i. A budget should be prepared and supported by corroborative evidence such as paystubs, income statements, bank documentation, tax returns, bills and letters from employers. b. If the hardship is based upon a loss of career or education opportunity or investments, explain and document why qualifying relative cannot move to applicant s home country: i. Obtain letters from employers and schools ii. Document licensing requirements, specific skills or that life may be in danger. 8. Obtain and present evidence of any harm, persecution or significant discrimination that the applicant or qualifying relative may face in the home country: a. Gender based b. Sexual orientation c. Prior work/intelligence for any government d. Religious, political, membership of social group, nationality, tribal affiliation, e. Targeting by gangs f. Use same kind of documentation as you would for asylum case: expert and country condition reports and declarations, etc. Closing Tip Be creative and zealous to try to help your client humanize his or her situation and stand out from other applications. 3 AILA-DC 2012 FALL CONF. 725

418 TRACK 2 - AFTERNOON - EMPLOYMENT BASED IMMIGRATION: EB-5 INVESTMENT DOES NOT ALWAYS MEAN GREEN CARD - HIDDEN PITFALLS OF INVESTMENT IMMIGRATION: MATERIALS AILA-DC 2012 FALL CONF. 726

419 December 9, 2011 Office of Public Engagement U.S. Citizenship and Immigration Services 20 Massachusetts Ave. NW Washington, DC Via Re: AILA Comments on USCIS Draft Memorandum: EB-5 Adjudications Policy (PM-602-XXXX), Posted November 9, 2011 The American Immigration Lawyer s Association (AILA) submits the following comments in response to the draft policy memorandum, EB- 5 Adjudications Policy, posted on the USCIS website for comment on November 9, AILA is a voluntary bar association of more than 11,000 attorneys and law professors practicing, researching, and teaching in the field of immigration and nationality law. Since 1946, our mission has included the advancement of the law pertaining to immigration and nationality and the facilitation of justice in the field. AILA members regularly advise and represent businesses, U.S. citizens, U.S. lawful permanent residents, and foreign nationals regarding the application and interpretation of U.S. immigration laws. We appreciate the opportunity to comment on the proposed EB-5 memo and believe that our members collective expertise provides experience that makes us particularly wellqualified to offer views on this matter. The AILA EB-5 Committee applauds the efforts of USCIS to create a comprehensive memorandum that consolidates the agency s guidance to stakeholders in the EB-5 area. Although we believe that much of the Draft Memorandum contains an accurate recitation of the law and existing policy, and some of the areas of conflicting adjudication have been clarified, we appreciate the opportunity to comment on issues that require further clarification. Our comments include (a) areas where the law has been incorrectly stated; (b) areas covered by the Draft Memorandum where further clarification would be beneficial; and (c) areas not covered by the Draft Memorandum where we ask for the opportunity to provide suggested language. Our comments, with reference to the pages of the Draft Memorandum, are as follows: AILA-DC 2012 FALL CONF. 727

420 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 2 1. To the extent that the Draft Memorandum establishes new guidance in areas where there have been conflicting adjudication policies (such as deference to state geographical TEA designations and job creation by the new commercial enterprise and not the EB-5 investors in cases of bridge financing), we respectfully request that USCIS make this guidance immediately available to the field pending the finalization of the Draft Memorandum. 2. Page 1, Paragraph 3: Change directly manage job-creating commercial enterprises to engage in the management of the job-creating commercial enterprise. 8 CFR 204.6(j)(5). 3. Page 3, Third Bullet Point: The Memorandum should explain the distinction between capital acquired by unlawful means such as criminal activities and capital acquired through lawful means by aliens who may have had immigration status violations during the time the capital was lawfully acquired. 8 CFR 204.6(e). Also, the Memorandum should clarify that the requirement to prove that capital was acquired by lawful means only applies to capital invested in the new commercial enterprise and not to other capital acquired by the investor or capital used to pay regional center expenses, overhead, etc. above and beyond the $500,000 or $1,000,000 that is invested in the new commercial enterprise. We note that some requests for evidence (RFE) are requesting this extraneous documentation. 4. Page 6, First Full Paragraph: The statement that the investment must create the jobs in the targeted employment area does not apply to indirect jobs in the regional center context as confirmed in the letter from USCIS Director Mayorkas to Senator Leahy (see attached). There is no statutory or regulatory limit to the geographic location of indirect jobs. The Adjudicator s Field Manual (AFM) does not state that all qualified indirect job creation must occur within a regional center, and Congress has never mandated such a requirement. This makes good sense. An EB-5 project may create employment outside of a regional center at the same time as it increases productivity within the regional center. Indirect employment creation outside regional center boundaries may be necessary to the function of the regional center project where, for example, materials or services provided from outside the region are necessary to implement the project. In such a case, without extra-regional employment creation there would be no increased employment within the regional center. It is also clear that small regional centers may not be able to confine all indirect employment within their boundaries or that projects situated close to the boundaries of a regional center may create employment outside the regional center perimeter. Regional center productivity supports the primary objective of the EB-5 program, codified at INA 203(b)(5)(A)(iii), which provides for EB-5 classification if the new commercial enterprise will benefit the United States economy and create AILA-DC 2012 FALL CONF. 728

421 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 3 full-time employment for not fewer than 10 qualified persons. Therefore, the primary purpose of the EB-5 program is to aid the entire U.S. economy. Thus, 8 CFR 204.6(m)(3)(iv) refers to the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center Page 7, First Paragraph: Change is to give deference to to shall not question or challenge to conform to the language of AFM 22.4(c)(4)(F). 6. The Memorandum should specify that a census tract or combination of census tracts can constitute a geographical subdivision under the regulations. While political subdivision has a general defined meaning (such as a state, county, city), 2 there is no general definition of geographic subdivision, Also, because the definitions set apart the qualifying areas in the alternative as geographic or political subdivision, the geographic subdivision must have a meaning apart from political subdivision. It is evident, then, that a geographic subdivision may encompass any single area deemed rational by the delegated state authority, vested with the full authority under the regulations, to designate high unemployment areas. This single area may encompass unincorporated areas, for example, or multiple political subdivisions, or parts of political subdivisions or statistical subdivisions such as a single census tract or multiple census tracts. The purpose of the state designation letter is precisely to permit an authorized state body to designate irregular areas not readily encompassed by a political subdivision or subdivisions as high unemployment TEAs. 7. Page 8: The following clarification should be added: In order to determine whether an investment is in a new commercial enterprise, the initial inquiry is whether the investment is in a commercial enterprise that was established after November 29, If the investment is in a commercial enterprise that was established after November 29, 1990, the requirement is met and no further inquiry is appropriate. If the investment is made in a commercial enterprise established on or before November 29, 1990, the investor must meet one of two tests. In a pre-november 29, 1990 commercial enterprise, the investor must restructure or reorganize an existing business or expand the business in such a 1 Emphasis added. NB: Matter of Izumii (in relevant part) states only that all the business activity of an EB- 5 project must be conducted inside a regional center. This holding is entirely unrelated and irrelevant to the lawfully unsupportable conclusion that indirect employment generated outside a regional center by business activity inside a regional center may not be counted in support of an investor s petition. 2 See, e.g., (a county, city, town, or other municipal corporation, a public authority, and generally any publicly owned entity that is an instrumentality of a state or of a municipal corporation.) 3 8 CFR 204.6(c), Definition of new. AILA-DC 2012 FALL CONF. 729

422 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 4 way as to accomplish a 40 percent increase either in the net worth or the number of employees of the business. We note that 8 CFR 204.6(h)(1), with respect to commercial enterprises established after November 29, 1990, requires that the investor create an original business. This regulation is obsolete since it refers to the requirement in the law prior to November 2, 2002 that the investor must establish a commercial enterprise. With the removal of that requirement in the 21st Century Department of Justice Appropriations Authorization Act, the alien need no longer create an original business; it is sufficient if he invests in and is engaged in a new commercial enterprise Page 8: The Memorandum should clarify that a new commercial enterprise established after November 29, 1990 does not lose its status as a new commercial enterprise because it purchases assets from an independent enterprise which it does not acquire and with respect to which it is not a successor in interest (assuming it does not acquire all of the rights and liabilities of the independent company whose assets have been purchased). The date that the company from which assets were purchased was established is completely irrelevant as to whether the purchasing company is a new commercial enterprise. USCIS has without legal basis required the demonstration of a successor-in-interest relationship (i.e. assumption of rights and obligations of the seller) between the entity from which the EB-5 enterprise has purchased assets and the EB-5 enterprise. However, if USCIS considers the purchase of assets to be relevant to the determination of new commercial enterprise, it should use the same standard for successor in interest that it has employed in adjudicating other immigration petitions. USCIS defines successor in interest for non-eb-5 benefits as when one company assumes all the rights and obligations of another company. 5 However, USCIS imposes a different standard in EB-5 adjudications. Currently, when an investor forms a new company, purchases assets from an existent business, and opens in the same location, the new company must prove that the prior company was established after November 29, 1990, which it cannot do since it is not a successor in interest and has no access to the company s records. Likewise, if the investor is not a successor in interest, he or she does not have access to documents required to prove an increase in net worth or number of employees or restructuring, as the investor has no ownership relationship with the seller. 4 See Memorandum, William Yates, Acting Associate Director of Operations, Amendments Affecting the Adjudication of Petitions for Alien Entrepreneur (HQ 40/6.1.3) (June 10, 2003). 5 See Letter from Efren Hernandez, 77 Interpreter Releases 591 (May 1, 2000). See also Letter, Hernandez, Director, Business and Trade Services, INS HQ 70/6.1.3 (Oct. 17, 2001); Memorandum, Puleo, Acting Exec. Assoc. Comm. HQ P, HQ P (Dec. 10, 1993). Cf 8 CFR 274a.2(b)(1)(viii)(A)(7). AILA-DC 2012 FALL CONF. 730

423 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 5 It is unreasonable to expect a business to disclose confidential tax information to a company that merely purchases some of its assets. Although USCIS should not confuse the EB-5 enterprise s use of EB-5 proceeds to purchase assets with a successor-in-interest scenario, if it does, it should adhere to the successor-ininterest standard that it has followed for decades and should not vary from this determination in the EB-5 realm. 9. Page 8, Section 2a: The Memorandum should clarify what constitutes sufficient restructuring or reorganization for purposes of creating a new commercial enterprise. This is critical because these terms have not been defined in any AAO decision or in any stakeholders meeting. The only precedent decision to discuss corporate restructuring and reorganization required by 8 CFR (h)(2) is Matter of Soffici, 22 I&N Dec. 158 (BIA 1998). In Soffici, an investor purchased a Howard Johnson s Motor Lodge and continued to run it as such. The AAO held that this did not constitute a qualifying reorganization, stating that the petitioner had not shown the degree of restructuring and reorganization required by the regulations. The AAO noted that the hotel had always been a Howard Johnson and continued to be so. Though Soffici addressed a situation where restructuring and reorganization had clearly not occurred, it failed to provide any type of guidance on when it would occur. In a July 11, 2001 non-precedent decision, the AAO found that sufficient restructuring and reorganization had occurred where an investor purchased a farm that bred and trained a few horses and provided a business plan to show he would be constructing a substantial breeding and training program and selling well trained dressage and show jumping horses. The AAO noted that the proposed business reflected a clear change in mission and dramatically expanded the services of the farm. In addition, the investor not only obtained land use rights but also purchased additional farm land. At the very least, a change in the mission or focus of a business should also result in sufficient reorganization or restructuring. Some examples are: A restaurant becomes a nightclub A dairy farm also becomes a crop producing farm A hotel becomes an adult congregate living facility. 10. Page 11, C: While USCIS must focus on the number of full-time qualifying employment positions created by the new commercial enterprise, it should not deem relevant prior employment positions in unrelated entities. For example, a Subway restaurant in a strip mall closes. Shortly thereafter, a Taco Bell leases the same space and hires ten full-time workers. USCIS should not request evidence of the number of employees employed at the Subway restaurant. There would be no way for the Taco Bell investor to know this information and there is no legal basis to require an investor to prove employment numbers in an unrelated company. AILA-DC 2012 FALL CONF. 731

424 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 6 USCIS currently requires this by way of requesting evidence of relocated jobs and discounting them. 11. Page 12, Top: The Draft Memorandum properly indicates that 8 CFR 204.6(j)(4)(i) states that it is the new commercial enterprise, not the EB-5 investor, which must create the requisite employment positions. However, the Draft Memorandum should make note of the very common practice of real estate developers utilizing interim, temporary, or bridge financing in the form of either debt or equity prior to receipt of EB-5 capital. Language such as the following should be added: Since the job creation requirement applies to the new commercial enterprise rather than the specific EB-5 investor s capital, the commencement of job creation based upon bridge or interim financing subsequently replaced by EB-5 capital does not detract from the creation of jobs by the new commercial enterprise Page 13, Third paragraph: The distinction between part-time positions and job sharing arrangements should be clarified by noting that job sharing arrangements apply to two or more qualifying employees in the same job whereas part-time positions apply to two or more employees in different jobs. 13. Page 13, 2(a): Examples should be provided to clarify areas of confusion: An investor in a troubled business with six qualifying employees can qualify by saving the six jobs and adding four qualifying employees. Three investors who invest concurrently on the same day in a troubled business with 20 existing qualifying employees can all qualify by saving the 20 jobs and adding 10 new qualifying employees. Ten investors in a regional center troubled business with 20 existing qualifying employees can qualify by saving all 20 employee positions which are direct jobs and adding 80 additional direct and/or indirect jobs as calculated by a reasonable economic methodology. 14. Page 14 (c): The last sentence should clarify that the indirect jobs can be outside of the regional center. 15. Page 14, 3: The Memorandum should clarify that a new commercial enterprise is not required to violate 8 CFR 274a in order to meet the requirements of EB-5. Our position paper on this subject, with the warning to employers from the Department of Justice Office of Special Counsel is attached. 16. Page 14: We suggest that page 14(c) be changed to read as follows: 6 See AILA EB-5 Committee position paper on interim financing, attached. AILA-DC 2012 FALL CONF. 732

425 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 7 (c) New Commercial Enterprise Located Within and Associated With a Regional Center For a new commercial enterprise that is not a troubled business and is located within a regional center, the EB-5 program provides that the full-time positions can be created either directly or indirectly by the new commercial enterprise. 8 CFR 204.6((j)(4)(iii). These terms are generally defined as follows: Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons that they directly employ (as manifested by payroll records, I-9 employment eligibility verification records, and W-2 tax wage statements). Indirect jobs are the jobs held by persons who work for the producers of materials, equipment, and services that are used in a commercial enterprise s capital investment project, but who are not directly employed by the commercial enterprise, such as steel producers or outside firms that provide accounting services. There is a sub-set of indirect jobs that are calculated using economic models that are known as induced jobs. Induced jobs are those jobs created when direct and indirect employees go out and spend their increased incomes on consumer goods and services. Regional centers use various economic models to determine the number of indirect jobs that will be created through investments in the regional center s investment projects. Many economic models used to demonstrate indirect job creation rely on certain assumptions or variables to show the requisite job creation including, but not limited to, direct-effects, construction expenditures, gross annual revenues, square footage or loan amount. Economists sometimes use the term direct workers or jobs when calculating the total indirect job creation impacts from construction activities. As noted above, however, USCIS deems direct jobs as only those workers directly employed by the new commercial enterprise. This has created some confusion among stakeholders. Thus, USCIS should clarify that unless the new commercial enterprise is, in fact, a construction company, the job creation impacts resulting from construction expenditures are recognized as indirect jobs. 17. Page 15, Top: The Memorandum should explain that Matter of Ho applies to general and troubled business EB-5 petitions and not to regional centers or regional center projects. 8 CFR 204.6(j)(4) requires a business plan to meet the two-year job-creation requirement in the context of (i) a general EB-5 project; AILA-DC 2012 FALL CONF. 733

426 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 8 and (ii) a troubled business. Neither the business plan nor the two-year job creation is referenced in subsection (iii) relating to the Immigrant Investor Pilot Program. Rather, for regional centers, the regulation requires reasonable methodologies to demonstrate employment creation rather than a business plan. Therefore, it is incorrect to treat Matter of Ho as applying to regional center-based EB-5 cases. 18. Page 17, B: The first paragraph is very helpful in explaining the realities of the business world. We commend USCIS s intention to modify its prior position regarding approvability of Form I-829 notwithstanding changes in the business plan contained in the I-526 petition. For the reasons set forth in AILA s January 21, 2011 comments, we believe that requiring an unchanged business plan at the I-829 phase is flawed as a matter of law and accordingly welcome this change. However, the Memorandum should make clear that Matter of Izummi and Matter of Katigbak do not relate in any way to material changes subsequent to the approval of an I-526 petition and prior to the filing of the separate I-829. The Draft Memorandum incorrectly references Katigbak, a decision adopted in the EB-5 context in Izummi. USCIS s construction of Katigbak and Izummi laid the flawed groundwork to its material change policy in the December 2009 Memorandum. We are troubled to see that the Draft Memorandum expresses an even further departure from the actual holdings in these cases when it reformulates Katigbak and Izummi as supporting the position that a petition cannot be approved if, after filing, the petitioner becomes eligible under a new set of facts or circumstances. Under this formulation, even if eligibility is met at the time of filing and the petitioner demonstrates continued eligibility under different facts, USCIS will find Katigbak and Izummi violations. Katigbak and Izummi do not support this conclusion. Accordingly, we offer an analysis of these cases in the hope that USCIS will properly apply these authorities in EB-5 policy and adjudication. In Katigbak, the beneficiary did not qualify for the EB-3 preference category at the time of filing a petition on December 6, She lacked the required academic preparation to qualify as an accountant, a member of the professions, when the petition was filed, having only 19 2/3 semester units toward an accounting degree rather than the generally required 24. The petitioner claimed that in 1971, after the petition was filed and denied, the petitioner fulfilled the unit requirements. Rejecting these post-filing attempts to qualify, Katigbak held: A petition may not be approved for a profession for which the beneficiary is not qualified at the time of its filing. A beneficiary cannot expect to qualify subsequently by taking additional courses and then still claim a priority date as of the date the petition was filed, a date on which he was not qualified. In Katigbak, therefore, there was ineligibility ab initio as a matter of fact. AILA-DC 2012 FALL CONF. 734

427 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 9 In Izummi, after the I-526 was filed, the petitioner amended, among other documents, the limited partnership agreement in two stages. The second stage amendments, the petitioner contended, would make the I-526 approvable. Citing Katigbak, the AAO refused to recognize the second stage amendments, stating, the Service cannot consider facts that come into being only subsequent to the filing of a petition. Izummi states: A petition must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements. The facts in Izummi were analogous to Katigbak where there was ineligibility ab initio sought to be cured after filing. A material change therefore is a change made post-filing to cure an ineligibility defect. If the petitioner demonstrates eligibility at the time of filing, Katigbak and Izummi are improper authorities to disallow post-filing change, as such changes do not attempt to cure an ab initio ineligibility defect. Similarly, contrary to the Draft Memorandum, Katigbak and Izummi do not concern cases where the petitioner becomes eligible under a new set of facts or circumstances. USCIS s new articulation of Katigbak and Izummi in the Draft Memorandum is particularly concerning because, if adopted, USCIS would now find a Katigbak and Izummi problem where (1) a petitioner establishes eligibility ab initio; and (2) continues to establish eligibility, though under changed facts. Under these authorities properly understood, either fact actually renders Katigbak or Izummi inapposite. USCIS s surface interpretation of Katigbak and Izummi has resulted in, or at least supported, policies distrustful of inevitable business changes. As we have advanced in our earlier comments, the law and existing regulations are not hostile to business changes attending EB-5 enterprises, but rather encourage adjudication flexibility to accommodate such changes. USCIS should not use Katigbak and Izummi to uphold rigidity in dealing with post-filing changes, particularly where petitioners demonstrate continued eligibility. 19. Page 18, 1: The entire section on regional center applications (I-924) should be removed from the section dealing with material change and dealt with separately. The issue of when an amended I-924 is required is not dealt with in the Draft Memorandum and is not a material change issue. We will separately submit suggested language for the Memorandum relating to I-924s and amended I-924s. AILA-DC 2012 FALL CONF. 735

428 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 10 A regional center application is not an application by an alien for an immigration benefit based on specifically enumerated statutory eligibility criteria. Rather, a regional center application describes the parameters and anticipated impact of the proposed regional center s activities. 7 The application sets forth in broad terms, the geographic and industry scope of the regional center s planned activities; the types of investment structures to be used; the predicted economic impacts; the reasonable methodologies to be used to calculate such impacts; and the regional center s future oversight and administration plan. The approval of a regional center application confirms that the activities outlined in the regional center s approval and designation letter are permissible. Approval and designation letters are broadly construed to be in accord with the nature and purpose of the regional center designation. It is only the later-filed individual I- 526 and I-829 petitions affiliated with an approved regional center that must specifically comply with statutory eligibility requirements for employment-based fifth preference classification. The concept of material change, as understood in the context of individual applications and petitions for immigration benefits, does not apply to regional center applications. Regional centers may anticipate and incorporate change as businesses grow and evolve. For example, a regional center may anticipate opening a restaurant and later franchising and creating a restaurant chain. While operating a business may be different from managing a restaurant franchise operation, this type of anticipated material change is permissible within the framework of a regional center. If a regional center wishes to expand its scope beyond that described in the regional center proposal materials approved by USCIS, it must request and obtain approval of an amendment to the regional center s designation. The regulations anticipate that USCIS be informed of, and evaluate, the proposed expansion of scope. USCIS should facilitate and not hinder job-creating investment activity through the operation of regional centers. Accordingly, a regional center amendment should not be required merely because details later become available that were not discussed in the regional center application, nor should an amendment be required if details of internal business structures and operations change consistent with the customary evolution of businesses having no direct bearing on basic EB-5 statutory requirements. Rather, an amendment should be required only if those details pertain to an issue that is clearly outside the scope of the approved regional center parameters. 20. Page 18, 1: This section should also clarify that an approved exemplar I-526 petition is binding upon USCIS prospective adjudications of I-526 petitions if they are identical regarding the regional center project. The only issue that USCIS should address is the investor s source of funds. 7 See Section 610 of Public Law ; 8 CFR 204.6(m)(3). AILA-DC 2012 FALL CONF. 736

429 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page Page 18, 2: The Memorandum should confirm that, regardless of filing an amended I-924, an investor can, at the prescribed time, proceed to file form I-829 to remove conditions and present evidence demonstrating that the requirements for the removal of conditions have been satisfied based on sustaining the investment and creating the requisite jobs (or proving that jobs will be created within a reasonable time) notwithstanding a change in the business plan. 22. Page 18: USCIS s policy of denying I-829s if there has been a material change in a project has resulted in denials for bona fide investors whose money has already been used in building projects that have created jobs for U.S. workers. Given that almost all development projects have gone through changes caused by the severe economic recession, adverse weather conditions, unavailability of financing and other reasons, investors are left with a serious dilemma. They can file the I-829 and hope that USCIS does not consider changes to be material, which is a pure guessing game since there is no standard for material change. If they guess wrong, they end up in removal proceedings. If they fear USCIS might consider a change to be material, they have to start all over again, leaving conditional permanent resident children subject to removal from the United States if they have turned 21. USCIS must develop an alternative procedure for dealing with changes in projects where jobs have been created or will be created within a reasonable time. The problem is exacerbated in regional center projects with many investors. Let s postulate a regional center project with 50 investors who have to file I-829 petitions. Nothing in the I-829 relates to the investor; everything relates to the regional center project. Therefore, all of the I-829 petitions will be the same other than the allocation of jobs to each individual investor. Presently, all 50 investors have to file I-829 petitions and hope that USCIS does not find that there has been a material change when the petitions are adjudicated 7 or 8 months later. These 50 petitions may go to 50 different examiners who may make inconsistent findings, with some investors getting their conditions removed and others finding themselves in removal proceedings. This is a highly inefficient procedure for USCIS and a highly unsatisfactory procedure for good faith investors who have invested money in job-creating enterprises. Instead, USCIS should create a completely optional procedure for the regional center to file an exemplar I-829, similar to the procedure already established for the exemplar I-526. If USCIS believes there has been a material change from the original business plan, but there has been no fraud and the requisite number of jobs has been created, it can adjudicate compliance with the statutory provisions in the context of the exemplar I-829. If necessary, at the option of the regional center or at the insistence of USCIS when reviewing the exemplar I-829, the regional center could file an amended I-924 or amended exemplar I-526 to enable the Service to approve the changes and make a finding that all statutory and regulatory criteria have been met. AILA-DC 2012 FALL CONF. 737

430 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 12 Individual investors would still timely file their individual I-829s. If the exemplar I-829 is still pending, the petitions would be filed with a receipt showing the pendency of the exemplar I-829. An RFE would be issued for the approval of the exemplar I-829 and/or amended I-924. Upon approval, the approval notices would be sent in response to the RFE to enable the examiner to approve each individual s I-829. This procedure would be similar to the procedure that USCIS has adopted for dealing with the I-751 conditional removal process where the I- 751 is submitted after a divorce petition is filed but before the divorce is finalized. An RFE is issued for the divorce order. When the divorce is finalized, the divorce order is submitted to USCIS, and the I-751 petition is adjudicated. The procedure requiring a new I-526 when there is a material change was created before the existence of the I-924 and before the Service had any experience with the exemplar I-526, which is used increasingly by regional centers. The procedure suggested above is a logical extension of those new procedures. The new I-526 option would be reserved for only the direst of cases where jobs would not be created within a reasonable time but investors have invested in good faith. We emphasize that this suggested procedure should be completely optional and should only apply in the case of good faith investors and absent any fraud. We believe it enhances the integrity of the EB-5 program, drastically reduces adjudication time, promotes family reunification, prevents multiple petitions, and enables the Service to adjudicate the statutory and regulatory compliance prior to removing the conditions for any investor. 23. Page 18: The section on condition removal should set out the procedure to be followed when an investor opts to file an amended I-526 petition. This procedure should provide for holding the I-829 in abeyance and for concurrent adjudication of the application for adjustment of status or immigrant visa (and work/travel authorization if adjustment is filed) and the application for abandonment of conditional residence, so that there is no interruption in the investor s status, work authorization or travel permission. 24. The Memorandum should clarify that following to join dependents who acquire conditional permanent resident status after the principal acquires such status based on the same I-526 approval, up until the filing of the I-829 by the principal, should be able to remove conditions at the same time as the principal. Nowhere in 8 CFR 216.6(a)(l) is there language prohibiting the spouse and children who obtained conditional status after the principal s acquisition of conditional status from being included in the same I-829. When this language is compared to 8 CFR 216.4(a)(2) governing I-751 condition removal, there can be no doubt that the Service intended to treat the spouse and children differently in terms of I-829 benefits. In the I-829 context, the regulatory language limiting dependents who acquired conditional status within 90 days after the principal s acquisition of conditional status to be joined in the same I-829 has intentionally been left out. AILA-DC 2012 FALL CONF. 738

431 Draft Memorandum: EB-5 Adjudications Policy December 9, 2011 Page 13 This differential treatment of dependents is due to the fact that in the I-751 context, a principal applicant and a dependent child must be petitioned separately by the same USCIS petitioner-spouse, whereas in the I-829 context, spouse and children are included in the I-526 immigrant petition. Therefore, as long as the spouse and children obtained conditional status at any time after the principal acquired his status, there is no legal reason why such dependents should not be allowed to file and be accorded condition removal via the principal s I-829. This conclusion is supported by the practicality that there is no separate issue to be adjudicated in a stand-alone I-829 petition by a family member. In addition to these comments on the specific provisions of the Draft Memorandum, we suggest that the following important areas of EB-5 practice be included in the expanded and final Memorandum: Project preapprovals TEA longevity Congressional intent relating to removal of conditions Regional center amendments Indirect construction jobs 2.5 year job creation rule Length of time for substantiating I-829 Clarification of the timeframe/methodology to calculate the 150%. We will provide suggested language for the Memorandum in these important areas. We appreciate the opportunity to comment on the Draft Memorandum and look forward to a continuing dialogue with USCIS on these important matters. Sincerely, THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION AILA-DC 2012 FALL CONF. 739

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438 U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC Message From The Director Revised Draft Policy Memorandum Guiding EB-5 Adjudications U.S. Citizenship and Immigration Services (USCIS) thanks stakeholders for providing comments to the draft policy memorandum we posted to address certain foundational issues in the EB-5 Program. In anticipation of tomorrow s Conversation With The Director regarding the EB-5 Program, we have attached the revised draft policy memorandum that incorporates some of your comments. In tomorrow s Conversation, we will discuss the revised draft policy memorandum and seek to focus on certain important policy issues that we wish to further explore with you, including the issue of material change and how to most fairly and effectively address it in our EB-5 adjudications. As we stated previously, the formulation of the guiding EB-5 policy memorandum is an iterative process, one in which we seek your input. The revised policy memorandum is a further step in the iterative process. Tomorrow s Conversation will be important in guiding our determination of how to most effectively address some of the more difficult issues in the policy memorandum development process. We can continue tomorrow s discussion in the broader EB-5 quarterly engagement scheduled for later this month. We are working hard to enhance the EB-5 Program, including the issuance of policies that address developments in the use of the Program and carefully adhere to the governing statutes and regulations. Tomorrow, we will discuss our efforts to date, issues of importance to you, and the path ahead. We are dedicated to realizing the EB-5 Program s potential to create jobs for U.S. workers and to vigilantly protecting the Program s integrity. Thank you. Alejandro N. Mayorkas Director U.S. Citizenship and Immigration Services AILA-DC 2012 FALL CONF. 746

439 DRAFT FOR COMMENT ONLY Posted: This draft does not constitute agency policy in any way or for any purpose. U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC PM-602-XXXX Policy Memorandum SUBJECT: EB-5 Adjudications Policy I. Introduction The purpose of the EB-5 Program is to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital into the U.S. economy. Congress established the EB-5 Program in 1990 to bring new investment capital into the country and to create new jobs for U.S. workers. The EB-5 Program is based on our nation s interest in promoting the immigration of people who invest their capital in new, restructured, or expanded businesses in the United States and help create or preserve needed jobs for U.S. workers by doing so. In the EB-5 Program, immigrants who invest their capital in job-creating businesses in the United States receive conditional permanent resident status in the United States for a two-year period. After two years, if the immigrants have satisfied the conditions of the EB-5 Program and other criteria of eligibility, the conditions are removed and the immigrants become unconditional lawful permanent residents of the United States. Congress created the two-year conditional status period to help ensure compliance with the statutory and regulatory requirements and to provide a measure of predictability before meaningful investment activity is undertaken. The 1990 legislation that created the EB-5 Program envisioned lawful permanent resident status for immigrant investors who invest in and engage in the management of job-creating commercial enterprises. In 1993, the legislature enacted the Immigrant Investor Pilot Program that was designed to encourage immigrant investment in a range of business opportunities within designated regional centers. Our goal at U.S. Citizenship and Immigration Services is to make sure that the potential of the EB-5 Program, including the Immigrant Investor Pilot Program, is fully realized and the integrity of the EB-Program is protected. Through our thoughtful and careful adjudication of applications and petitions in the EB-5 Program, we can realize the intent of Congress to promote the immigration of people who invest capital into our nation s economy and help create jobs for U.S. workers. AILA-DC 2012 FALL CONF. 747

440 PM-602-XXXX: EB-5 Adjudications Policy Page 2 II. Preliminary Statement: The Preponderance of The Evidence Standard As a preliminary matter, it is critical that our adjudication of petitions in the EB-5 Program adhere to the correct standard of proof. In the EB-5 Program, the petitioner must establish each element by a preponderance of the evidence. That means that the petitioner must prove to us that what he or she claims is more likely so than not so. This is a lower standard of proof than the standard of clear and convincing, and even lower than the standard beyond a reasonable doubt that applies only to criminal cases. The petitioner does not need to remove all doubt from our adjudication, but must instead show that what he or she presents is more probable than not. III. The Three Elements of the EB-5 Program The EB-5 Program is based on three main elements: (1) the immigrant s investment of capital, (2) in a new commercial enterprise, (3) that creates jobs. Each of these elements is explained below in the context of both the original EB-5 Program and the Immigrant Investor Pilot Program. A. The Investment of Capital The EB-5 Program is based in part on the fact that the United States economy will benefit from an immigrant s contribution of capital. It is also based on the view that the benefit to the U.S. economy is greatest when the capital is committed to a job-creating commercial enterprise and placed at risk. The regulations that govern the EB-5 Program define the terms capital and investment with this in mind. 1. Capital Defined The word capital in the EB-5 Program does not mean only cash. Instead, the word capital is defined broadly in the regulations to take into account the many different ways in which an individual can make a contribution of financial value to a business. The regulation defines capital as follows: Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act. 8 C.F.R (e). AILA-DC 2012 FALL CONF. 748

441 PM-602-XXXX: EB-5 Adjudications Policy Page 3 The definition of capital has been clarified in precedent decisions that our Administrative Appeals Office (AAO) has issued: First, the definition of capital is sufficiently broad that it includes not only such things of value as cash, equipment, and other tangible property, but it can also include the immigrant investor s promise to pay (a promissory note), as long as the promise is secured by assets the immigrant investor owns, the immigrant investor is liable for the debt, and the assets of the immigrant investor do not for this purpose include assets of the company in which the immigrant is investing. In our AAO s precedent decision Matter of Hsiung, 22 I&N Dec. 201, 204 (Comm r 1998), we reflected the fact that the immigrant investor s promissory note can constitute capital under the regulations if the note is secured by assets the petitioner owns. We also determined that: (1) The assets must be specifically identified as securing the promissory note; (2) Any security interest must be perfected to the extent provided for by the jurisdiction in which the asset is located; and, (3) The asset must be fully amenable to seizure by a U.S. note holder. Second, all of the capital must be valued at fair market value in United States dollars. The fair market value of a promissory note depends on its present value, not the value at any different time. Matter of Izummi, 22 I&N Dec. 169, 186 (Comm r 1998). Third, any assets acquired directly or indirectly by unlawful means, such as criminal activity, will not be considered capital. The immigrant investor must demonstrate by a preponderance of the evidence that the capital was obtained through lawful means. According to the regulation, to make this showing the immigrant investor s petition must be accompanied, as applicable, by: (1) Foreign business registration records; or, (2) Corporate, partnership (or any other entity in any form which has filed in any country or subdivision thereof any return described in this list), and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the immigrant investor; or, (3) Evidence identifying any other source(s) of capital; or, (4) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private AILA-DC 2012 FALL CONF. 749

442 PM-602-XXXX: EB-5 Adjudications Policy Page 4 civil actions (pending or otherwise) involving monetary judgments against the immigrant investor from any court in or outside the United States within the past fifteen years. 8 C.F.R (j)(3)(i)-(iv). 2. Invest Defined The immigrant investor in the EB-5 Program is required to invest his or her capital. The regulation defines invest as follows: Invest means to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur [the immigrant investor] and the new commercial enterprise does not constitute a contribution of capital C.F.R (e). The regulation also provides that, in order to qualify as an investment in the EB-5 Program, the immigrant investor must actually place his or her capital at risk, and that the mere intent to invest is not sufficient. The regulation provides as follows: To show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petition is actively in the process of investing. The alien must show actual commitment of the required amount of capital. 8 C.F.R (j)(2). The EB-5 Program is seeking to attract individuals from other countries who are willing to put their capital at risk in the United States, with the hope of a return on their investment, to help create U.S. jobs. The law does not specify what the degree of risk must be, whether minimal or significant; the capital need only be at risk to some degree. However, if the immigrant investor is guaranteed the return of a portion of his or her investment, or is guaranteed a rate of return on a portion of his or her investment, then that portion of the capital is not at risk. Matter of Izummi, 22 I&N Dec. at For the capital to be at risk there must be a chance that it is lost. In our precedent decision Matter of Izummi, 22 I&N Dec. at , the AAO found that the capital was not at risk because the investment was governed by a redemption agreement that protected against the loss of the capital. A promise to return any portion of the immigrant investor s minimum required capital negates the required element of risk. AILA-DC 2012 FALL CONF. 750

443 PM-602-XXXX: EB-5 Adjudications Policy Page 5 In order for the immigrant investor to show that he or she has actually committed the required amount of capital, the evidence presented may include, but is not limited to, the following: (1) Bank statement(s) showing amount(s) deposited in United States business account(s) for the enterprise; (2) Evidence of assets which have been purchased for use in the United States enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity; (3) Evidence of property transferred from abroad for use in the United States enterprise, including United States Customs Service commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property; (4) Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder s request; or (5) Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable. 8 U.S.C (j)(2)(i)-(v). 3. The Amount of Capital That Must be Invested The statute governing the EB-5 Program provides that the immigrant investor must invest $1,000,000 in capital in a new commercial enterprise that creates not fewer than ten jobs. As discussed above, this means that the present fair market value, in United States dollars, of the immigrant investor s lawfully-derived capital must be $1,000, U.S.C. 1153(b)(5)(C)(i). An exception exists if the immigrant investor invests his or her capital in a new commercial enterprise that is principally doing business in, and creates jobs in, a targeted employment area. In such a case, the immigrant investor must invest a minimum of only $500,000 in capital. 8 U.S.C. 1153(b)(5)(C)(ii). See Section 3.a below for the definition of where the new commercial enterprise is principally doing business. AILA-DC 2012 FALL CONF. 751

444 PM-602-XXXX: EB-5 Adjudications Policy Page 6 An immigrant investor may diversify his or her total EB-5 investment across a portfolio of businesses, so long as the minimum investment amount is placed in a single commercial enterprise. An immigrant investor who is not associated with a regional center may deploy capital into a portfolio of businesses, so long as all capital is deployed through a single commercial enterprise and all jobs are created within that commercial enterprise. For example, in an area in which the minimum investment amount is $1,000,000, the investor can satisfy the statute if the commercial enterprise deploys $600,000 toward one business that it wholly owns, and $400,000 toward another business that it wholly owns. See 8 C.F.R (e). (In this instance, the two wholly-owned businesses would have to create an aggregate of ten new jobs between them.) An investor cannot qualify, on the other hand, by investing $600,000 in one commercial enterprise and $400,000 in a separate commercial enterprise. In the regional center context, where indirect jobs may be counted, the commercial enterprise may create jobs indirectly through multiple investments in corporate affiliates or in unrelated entities, but the investor cannot qualify by investing directly in those multiple entities. Rather, the investor s capital must still be invested in a single commercial enterprise, which can then deploy that capital in multiple ways. Where an investor elects to invest in a portfolio of businesses to satisfy EB-5 Program requirements, he or she must invest the standard statutory minimum of $1,000,000 in total unless each one of the businesses is located in a targeted employment area. a. Targeted Employment Area Defined The statute and regulations governing the EB-5 Program defines a targeted employment area as, at the time of investment, a rural area or an area that has experienced unemployment of at least 150 percent of the national average rate. A rural area is defined as any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States). 8 U.S.C. 1153(b)(5)(B)(ii), (iii); 8 C.F.R (e). In other words, a rural area must be both outside of a metropolitan statistical area and outside of a city or town having a population of 20,000 or more. Congress expressly provided for a reduced investment amount in a rural area or an area of high unemployment in order to spur immigrants to invest in new commercial enterprises that are principally doing business in, and creating jobs in, areas of greatest need. In order for the lower capital investment amount of $500,000 to apply, the new commercial enterprise into which the immigrant invests must be principally doing business in the targeted employment area and must create the jobs in the targeted employment area. 8 U.S.C. 1153(b)(5)(B)(i); 8 C.F.R (j)(6)(i), (ii). For the purpose of the EB-5 Program, a new commercial enterprise is principally doing business in the location where it regularly, systematically, and continuously provides goods or services that support job creation. If the new commercial enterprise provides such goods or services in more than one location, it will be deemed to be principally doing business in the AILA-DC 2012 FALL CONF. 752

445 PM-602-XXXX: EB-5 Adjudications Policy Page 7 location that is most significantly related to the majority of the job creation. Factors to be considered in making this determination may include, but are not limited to, (1) the location of any jobs directly created by the new commercial enterprise; (2) the location of any expenditure of capital related to the creation of jobs; (3) where the new commercial enterprise conducts its day-to-day operation; and (4) where the new commercial enterprise maintains its assets that are utilized in the creation of jobs. Matter of Izummi, 22 I&N Dec. at 174. As discussed fully below, investments through the Immigrant Investor Pilot Program can be made through regional centers and the new commercial enterprise may seek to establish indirect job creation. In these cases, the term principally doing business will apply to the job-creating enterprise rather than the new commercial enterprise. See 8 C.F.R (j)(6); Matter of Izummi, 22 I&N Dec. at (discussing the location of commercial enterprises to which the new commercial enterprise made loans). The immigrant investor may seek to have a geographic area designated as a targeted employment area. To do so, the immigrant investor must demonstrate that the targeted employment area meets the regulatory criteria. The regulations also provide that a state government may designate a targeted employment area within its own boundaries based upon a finding of high unemployment. b. A State s Designation of a Targeted Employment Area The regulation provides that a state government may designate an area within its boundaries as a targeted employment area based on high unemployment. Before the state may make such a designation, an official of the state must notify USCIS of the agency, board, or other appropriate governmental body of the state that will be delegated the authority to certify that the geographic or political subdivision is a high unemployment area. The state may then send a letter from the authorized body of the state certifying that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. 8 C.F.R (h)(3)(i). Pursuant to the regulation, USCIS is to give deference to the state s designation of the physical boundaries of the geographic or political subdivision that will be the targeted employment area. However, USCIS must ensure compliance with the statutory requirement that the proposed area designated by the state in fact has an unemployment rate of at least 150 percent of the national average rate. For this purpose, USCIS will review state determinations of the unemployment rate and, in doing so, USCIS can assess the method or methods by which the state authority obtained the unemployment statistics. Acceptable data sources for purposes of calculating unemployment include Local Area Unemployment Statistics produced by a government agency, U.S. Census Bureau data, and data from the American Community Survey. State unemployment determinations should be based on the most recent publicly available data from the source relied upon. There is no provision that allows a state to designate a rural area. AILA-DC 2012 FALL CONF. 753

446 PM-602-XXXX: EB-5 Adjudications Policy Page 8 B. New Commercial Enterprise As discussed at the beginning of this Policy Memorandum, the EB-5 Program eligibility requirements are based on the fact that the U.S. economy will benefit from an immigrant investor s investment of capital into a new commercial enterprise that, as a result of the investment, creates at least ten jobs for U.S. workers. We have discussed above the requirements regarding capital and investment. We now turn to the definition of, and requirements for, a new commercial enterprise. 1. Commercial Enterprise Defined First, the regulation governing the EB-5 Program defines the term commercial enterprise broadly, consistent with the realities of the business world and the many different forms and types of structures that job-creating activities can have. The regulation defines a commercial enterprise as follows: [A]ny for-profit activity formed for the ongoing conduct of lawful business. 8 C.F.R (e). The regulation provides a list of examples of commercial enterprises. It specifically states that the list is only of examples, and is not a complete list of the many forms a commercial enterprise can have. The examples listed are: [A] sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. 8 C.F.R (e). Finally, the regulation provides that the commercial enterprise must be one that is designed to make a profit, unlike, for example, some charitable organizations, and it does not include a noncommercial activity such as owning and operating a personal residence. 8 C.F.R (e). 2. New Defined In its effort to spur job creation in a wide variety of businesses, the EB-5 Program has presented a broad definition of what constitutes a new commercial enterprise into which the immigrant investor can invest the required amount of capital and help create jobs. AILA-DC 2012 FALL CONF. 754

447 PM-602-XXXX: EB-5 Adjudications Policy Page 9 The EB-5 Program defines new as established after November 29, C.F.R (e). The immigrant investor can invest the required amount of capital in a commercial enterprise that was established after November 29, 1990 to qualify for the EB-5 Program, provided the other eligibility criteria are met. In addition, in the EB-5 Program a new commercial enterprise also means a commercial enterprise that was established before November 29, 1990 and that will be restructured or expanded through the immigrant investor s investment of capital: a. The Purchase of an Existing Business That is Restructured or Reorganized The immigrant investor can invest in an existing business, regardless of when that business was first created, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. 8 C.F.R (h)(2). The facts of Matter of Soffici where an investor purchased a Howard Johnson hotel and continued to run it as a Howard Johnson hotel were not sufficient to establish a qualifying restructuring or reorganization. 22 I&N Dec. 158, 166 (Assoc. Comm r 1998) ( A few cosmetic changes to the decor and a new marketing strategy for success do not constitute the kind of restructuring contemplated by the regulations, nor does a simple change in ownership. ). b. The Expansion of An Existing Business The immigrant investor can invest in an existing business, regardless of when that business was first created, provided that a substantial change in the net worth or number of employees results from the investment of capital. 8 C.F.R (h)(3). Substantial change is defined as follows: [A] 40 percent increase either in the net worth, or in the number of employees, so that the new net worth, or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees. 8 C.F.R (h)(3). Investment in a new commercial enterprise in this manner does not exempt the immigrant investor from meeting the requirements relating to the amount of capital that must be invested and the number of jobs that must be created. 8 C.F.R (h)(3). The EB-5 Program provides that a new commercial enterprise can be used as the basis for the petition of more than one immigrant investor. Each immigrant investor must invest the required amount of capital and each immigrant investor s investment must result in the required number of jobs. AILA-DC 2012 FALL CONF. 755

448 PM-602-XXXX: EB-5 Adjudications Policy Page 10 The new commercial enterprise can have several owners and the owners do not all have to be immigrant investors seeking to enter the EB-5 Program, provided that the source(s) of all capital invested is (or are) identified and all invested capital has been derived by lawful means. 8 C.F.R (g). 3. Evidence of The Investment in a New Commercial Enterprise To show that the immigrant investor has invested in a new commercial enterprise, the immigrant investor must present the following evidence, in addition to any other evidence we deem appropriate: (1) as applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise; or, (2) A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the state or municipality does not issue such a certificate, a statement to that effect; or, (3) Evidence that, as of a date certain after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred. This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth or number of employees. 8 C.F.R (j), (j)(1)(i)-(iii). 4. The Requirement That The Immigrant Investor be Engaged in The Management of The New Commercial Enterprise The EB-5 Program requires the immigrant investor to be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation. It is not enough that the immigrant investor maintain a purely passive role in regard to his or her investment. 8 C.F.R (j)(5). AILA-DC 2012 FALL CONF. 756

449 PM-602-XXXX: EB-5 Adjudications Policy Page 11 To show that the immigrant investor is or will be engaged in the exercise of day-to-day managerial control or in the exercise of policy formulation, the immigrant investor must submit: (1) a statement of the position title that the immigrant investor has or will have in the new enterprise and a complete description of the position s duties; or, (2) evidence that the immigrant investor is a corporate officer or a member of the corporate board of directors; or, (3) if the new enterprise is a partnership, either limited or general, evidence that the immigrant investor is engaged in either direct management or policy making activities. If the petitioner is a limited partner and the limited partnership agreement provides the immigrant investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the immigrant investor will be considered sufficiently engaged in the management of the new commercial enterprise. 8 C.F.R (j)(5)(i)-(iii). 5. The Location of The New Commercial Enterprise in a Regional Center As previously mentioned, there is a pilot program within the EB-5 Program that provides for different job creation rules if the immigrant investor makes his or her investment in a new commercial enterprise located within a regional center. The pilot program is called the Immigrant Investor Pilot Program, and the different job creation rules are discussed below. A regional center is defined as follows: Regional center means any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. 8 C.F.R (e). A regional center that wants to participate in the Immigrant Investor Pilot Program must submit a proposal to us that: (1) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment; AILA-DC 2012 FALL CONF. 757

450 PM-602-XXXX: EB-5 Adjudications Policy Page 12 (2) Provides in verifiable detail how jobs will be created directly or indirectly; (3) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center; (4) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and, (5) Is supported by economically or statistically sound valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables. 8 C.F.R (m)(3)(i)-(v). The Immigrant Investor Pilot Program was implemented with the goal of spurring greater economic growth in the geographic area in which a regional center is developed. A foreign national may be the principal or owner of a regional center. The regional center model within the Immigrant Investor Pilot Program can offer an immigrant investor already-defined investment opportunities, thereby reducing the immigrant investor s responsibility to identify acceptable investment vehicles. A regional center can manage, direct, and control the projects and developments that the new commercial enterprise initiates. In addition, the regional center can develop business plans and otherwise facilitate the formation of the new commercial enterprise, and can provide the economic analysis required to demonstrate job creation. As discussed fully below, if the new commercial enterprise is located within and falls within the economic scope of the defined regional center, different job creation requirements apply. A regional center can contain one or more new commercial enterprises. C. The Creation of Jobs In developing the EB-5 Program, Congress intended to promote the immigration of people who invest capital into our nation s economy and help create jobs for U.S. workers. The creation of jobs for U.S. workers is a critical element of the EB-5 Program. It is not enough that the immigrant invest funds into the U.S. economy; the investment must result in the creation of jobs for qualifying employees. As discussed fully below, the EB-5 Program provides that each investment of the required amount of capital in a new commercial enterprise must result in the creation of at least ten jobs. AILA-DC 2012 FALL CONF. 758

451 PM-602-XXXX: EB-5 Adjudications Policy Page 13 It is important to recognize that while the immigrant s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. This distinction is best illustrated by an example: Ten immigrant investors seek to establish a hotel as their new commercial enterprise. The establishment of the new hotel requires capital to pay financing costs, purchasing the land, developing the plans, obtaining the licenses, building the structure, taking care of the grounds, staffing the hotel, and the many other types of expenses involved in the development and operation of a new hotel. The immigrant s investments can go to pay part or all of any of these expenses. Each immigrant s investment of the required amount of capital helps the new commercial enterprise the new hotel create ten jobs. The ten immigrants investments must result in the new hotel s creation of 100 jobs for qualifying employees (ten jobs resulting from each of the ten immigrant s investment). See 8 C.F.R (j) (it is the new commercial enterprise that will create the ten jobs). It is also important to note that the full amount of the immigrant s investment must be made available to the business(es) most closely responsible for creating the jobs upon which EB-5 eligibility is based. Thus, in the regional center context, if the new commercial enterprise is not the job-creating entity, then the full amount of the capital must be first invested in the new commercial enterprise and then placed into the job-creating entity. Matter of Izummi, 22 I&N Dec. at Full-Time Positions For Qualifying Employees The EB-5 Program requires that the immigrant investor invest the required amount of capital in a new commercial enterprise in the United States that will create full-time positions for not fewer than 10 qualifying employees. 8 C.F.R (j). An employee is defined as follows: Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. 8 C.F.R (e). The employee must be a qualifying employee for the purpose of the EB-5 Program s job creation requirement. A qualifying employee is defined as follows: Qualifying employee means a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. This definition does not include the alien AILA-DC 2012 FALL CONF. 759

452 PM-602-XXXX: EB-5 Adjudications Policy Page 14 entrepreneur, the alien entrepreneur s spouse, sons, or daughters, or any nonimmigrant alien. 8 C.F.R (e). It is important to note that the definition of qualifying employee does not include the immigrant investor himself or herself, the immigrant investor s spouse, sons, or daughters, or any nonimmigrant alien. 8 C.F.R (e). The EB-5 Program s job creation requirement provides that it is full-time employment that must be created for the ten or more qualifying employees. Full-time employment is defined as follows: Full-time employment means employment of a qualified employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week A full-time employment position can be filled by two or more qualifying employees in a job sharing arrangement as long as the 35-working-hours-per-week requirement is met. However, a full-time employment position cannot be filled by combinations of part-time positions, even if those positions when combined meet the hourly requirement. 8 C.F.R (e). Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as full-time jobs. Consistent with prior USCIS interpretation, however, jobs that are expected to last for at least two years are sufficiently permanent to qualify for EB-5 purposes. 2. Job Creation Requirement As previously discussed, the centerpiece of the EB-5 Program is the creation of jobs. The immigrant investor seeking to enter the United States through the EB-5 Program must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least ten qualified employees. There are three measures of job creation in the EB-5 Program, depending on the new commercial enterprise and where it is located: (a) Troubled Business The EB-5 Program recognizes that in the case of a troubled business, our economy benefits when the immigrant investor helps preserve the troubled business s existing jobs. Therefore, when the immigrant investor is investing in a new commercial enterprise that is a troubled business or, in the regional center context, is placing capital into a job-creating entity that is a troubled business, the immigrant investor must only show that the number of existing employees in the troubled business is being or will be maintained at no less than the pre-investment level for a period of at least two years. 8 C.F.R (j)(4)(ii). AILA-DC 2012 FALL CONF. 760

453 PM-602-XXXX: EB-5 Adjudications Policy Page 15 This regulatory provision, while allowing job preservation in lieu of job creation, does not modify the numeric requirement; in the case of a troubled business, ten jobs must be preserved, created, or some combination of the two (e.g., an investment in a troubled business that creates four qualifying jobs and preserves six would satisfy the statutory and regulatory requirements). A troubled business is defined as follows: [A] business that has been in existence for at least two years, has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the twelve- or twenty-four month period prior to the priority date on the alien entrepreneur s Form I-526, and the loss for such period is at least equal to twenty percent of the troubled business s net worth prior to such loss. For purposes of determining whether or not the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded. 8 C.F.R (e). (b) New Commercial Enterprise Not Associated With a Regional Center For a new commercial enterprise that is not a troubled business and is not associated with a regional center, the EB-5 Program provides that the full-time positions must be created directly by the new commercial enterprise. This means that the new commercial enterprise (or its wholly-owned subsidiaries) must itself be the employer of the qualified employees who fill the new full-time positions. 8 C.F.R (e) (definition of employee). (c) New Commercial Enterprise Located Within and Associated With a Regional Center For a new commercial enterprise that is not a troubled business and is located within a regional center, the EB-5 Program provides that the full-time positions can be created either directly or indirectly by the new commercial enterprise. 8 C.F.R ((j)(4)(iii). Indirect jobs are those that are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. For indirect jobs, the new full-time employees would not be employed directly by the new commercial enterprise. For example, indirect jobs can include, but are not limited to, those held by employees of the producers of materials, equipment, or services used by the new commercial enterprise. Indirect jobs can qualify as jobs attributable to a regional center, based on reasonable economic methodologies, even if they are located outside of the geographical boundaries of a regional center. AILA-DC 2012 FALL CONF. 761

454 PM-602-XXXX: EB-5 Adjudications Policy Page 16 For purposes of proving indirect job creation, petitioners must employ reasonable economic methodologies to establish by a preponderance of the evidence that the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs. 3. Evidence of Job Creation In order to show that a new commercial enterprise will create not fewer than ten full-time positions for qualifying employees, an immigrant investor must submit the following evidence: Documentation consisting of photocopies of relevant tax records, Form I-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or, A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired. 8 C.F.R (j)(4)(i). For purposes of the Form I-526 adjudication and the job creation requirements, the two-year period described in 8 C.F.R (j)(4)(i)(B) is deemed to commence six months after the adjudication of the Form I-526. The business plan filed with the Form I-526 should reasonably demonstrate that the requisite number of jobs will be created by the end of this two-year period. A business plan must comply with the requirements set forth in our AAO precedent decision: The plan should contain a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition s products and pricing structures, and a description of the target market/prospective customers of the new commercial enterprise. The plan should list the required permits and licenses obtained. If applicable, it should describe the manufacturing or production process, the materials required, and the supply sources. The plan should detail any contracts executed for the supply of materials and/or the distribution of products. It should discuss the marketing strategy of the business, including pricing, advertising, and servicing. The plan should set forth the business s organizational structure and its personnel s experience. It should explain the business s staffing requirements and contain a timetable for hiring, as well as job descriptions for all positions. It should contain sales, cost, and income projections and detail the bases therefore. Most importantly, the business plan must be credible. Matter of Ho, 22 I&N Dec. 206, 213 (Comm r 1998). AILA-DC 2012 FALL CONF. 762

455 PM-602-XXXX: EB-5 Adjudications Policy Page 17 In the case of a troubled business, a comprehensive business plan must accompany the other required evidentiary documents. 8 C.F.R (j)(4)(ii). In the case of a new commercial enterprise within a regional center, the direct or indirect job creation may be demonstrated by the types of documents identified above or by reasonable methodologies. 8 C.F.R (j)(4)(iii). When there are multiple investors in a new commercial enterprise, the total number of full-time positions created for qualifying employees will be allocated only to those immigrant investors who have used the establishment of the new commercial enterprise as the basis of their entry in the EB-5 Program. An allocation does not need to be made among persons not seeking classification in the EB-5 Program, nor does an allocation need to be made among non-natural persons (such as among investing corporations). 8 C.F.R (g)(2). IV. Procedural Issues The EB-5 Program provides that the immigrant investor will file an initial petition and supporting documentation to be classified as eligible to apply for an EB-5 visa through USCIS s adjustment of status process within the United States or through the Department of State s visa application process abroad. Upon adjustment of status or admission to the United States, the immigrant investor is a conditional lawful permanent resident. The EB-5 Program further provides that if, after two years, the immigrant investor has satisfied the EB-5 Program s conditions, the conditions will be removed and the immigrant investor will be an unconditional lawful permanent resident. A. The Sequence of Filings: General Overview An immigrant investor seeking admission into the United States as a lawful permanent resident will proceed in the following sequence: For an immigrant investor who is investing in a new commercial enterprise that is not part of a regional center, the immigrant investor will file a Form I-526 that, together with the supporting evidence, demonstrates by a preponderance of the evidence that the immigrant investor has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise in the United States that will create fulltime positions for not fewer than ten qualifying direct employees. For an immigrant investor who is investing in a new commercial enterprise that is part of a regional center: o The entity seeking designation as a regional center will file a Form I-924 that, together with the supporting evidence, demonstrates by a preponderance of the evidence that the requirements for a regional center have been met. The individuals who establish the regional center can be, but need not be, the immigrant investors themselves; and, AILA-DC 2012 FALL CONF. 763

456 PM-602-XXXX: EB-5 Adjudications Policy Page 18 o Once USCIS designates the entity as a regional center, each immigrant investor will file a Form I-526 that, together with the supporting evidence, demonstrates by a preponderance of the evidence that the immigrant investor has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise in the United States that will create directly or indirectly full-time positions for not fewer than ten qualifying employees. It is important to note that at this preliminary Form I-526 filing stage, the immigrant investor must demonstrate his or her commitment to invest the capital but need not establish that the required capital already has been invested; it is sufficient if the immigrant investor demonstrates that he or she is actively in the process of investing the required capital. However, evidence of a mere intent to invest or of prospective investment arrangements entailing no present commitment will not suffice. 8 C.F.R (j)(2); see Matter of Ho, 22 I&N Dec. 206, 210 (Comm r 1998). Similarly, at this preliminary stage the immigrant investor need not establish that the required jobs already have been created; it is sufficient if the immigrant investor demonstrates in a business plan that the required jobs will be created. 8 C.F.R (j); 8 C.F.R (m). Ninety days prior to the two-year anniversary of the date on which the immigrant investor obtained conditional lawful permanent resident status, the immigrant investor will file a Form I-829 to remove the conditions. The I-829 petition to remove conditions must be accompanied by the following evidence: (1) Evidence that the immigrant investor invested or was actively in the process of investing the required capital and sustained this action throughout the period of the immigrant investor s residence in the United States. The immigrant investor can make this showing if he or she has, in good faith, substantially met the capital investment requirement and continuously maintained his or her capital investment over the two years of conditional residence. Even at this stage the immigrant investor need not have invested all of the required capital, but need only have substantially met that requirement. The evidence may include, but is not limited to, an audited financial statement or other probative evidence such as bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements; and, (2) Evidence that the immigrant investor created or can be expected to create, within a reasonable time, ten full-time jobs for qualifying employees. In the case of a troubled business, the immigrant investor must submit evidence that the commercial enterprise maintained the number of existing employees at no less than the pre-investment level for the period following his or her admission as a conditional permanent resident. The evidence may include, but is not limited to, payroll records, relevant tax documents, and Forms I-9. AILA-DC 2012 FALL CONF. 764

457 PM-602-XXXX: EB-5 Adjudications Policy Page 19 8 C.F.R (a)(4). It is also important to note that the EB5 Program allows an immigrant investor to become a lawful permanent resident, without conditions, if the immigrant investor has established a new commercial enterprise, substantially met the capital requirement, and can be expected to create within a reasonable time the required number of jobs. All of the goals of capital investment and job creation need not have been fully realized before the conditions on the immigrant investor s status have been removed. The regulations require the submission of documentary evidence of substantial compliance with the capital requirements and evidence that the jobs will be created within a reasonable time. This is a reflection of the EB-5 Program s desire to attract investment and promote job creation, and also its recognition of the dynamics of capital investments in new commercial enterprises for the purpose of creating jobs. Distinct EB-5 eligibility requirements must be met at each stage of the EB-5 immigration process. Where USCIS has evaluated and approved certain aspects of an EB-5 investment, that favorable determination should generally be given deference at a subsequent stage in the EB-5 process. Unless there is reason to believe that a prior adjudication was in error, the agency will not reexamine determinations made earlier in the EB-5 process. However, a previously favorable decision may not be relied upon in later proceedings where, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation in the record of proceeding, or the previously favorable decision is determined to be legally deficient. B. Material Change The process of establishing a new business and creating jobs depends on a wide array of variables over which an investor or the creator of a new business may not have any control. The very best of business plans may be thrown off, for example, because of a sudden lack of supply in required merchandise or an unexpected hurricane that devastates an area in which the new business was to be built. The effect of changed business plans on a regional center or an individual investor s immigration status may differ depending on when the change is made relative to the various petitions the regional center or the individual investor have filed. It is well established that in visa petition proceedings, a petitioner must establish eligibility at the time of filing and that a petition cannot be approved if, after filing, the petitioner becomes eligible under a new set of facts or circumstances. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of Izummi, 22 I&N Dec. at 175 ( a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements ). AILA-DC 2012 FALL CONF. 765

458 PM-602-XXXX: EB-5 Adjudications Policy Page Regional Center Applications (Forms I-924) In recognition of the fact that the regional center developer might in good faith have to implement material changes after submission of the initial Form I-924 petition to USCIS, the instructions to Form I-924 provide that a regional center may amend a previously-approved designation. The Form I-924 provides a list of acceptable amendments, including to geographic area, organization structure, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously-approved investment opportunities), and an affiliated commercial enterprise s organization structure. The approval of an amended Form I-924 does not cure or amend the I-526 petition an individual investor filed prior to the approval of the regional center amendment. The amendment alters the scope of the regional center to include the new commercial activity being conducted so that petitions filed after the amendment s approval fall within the scope of the regional center s approved activities. 2. Investors Who Have Obtained Conditional Lawful Permanent Resident Status Historically, USCIS has required a direct connection between the business plan the investor has provided and the subsequent removal of conditions. USCIS would not approve a Form I-829 petition if the investor had made an investment and created jobs in the United States if the jobs were not created according to the plan presented in the Form I-526. While that position is a permissible construction of the governing statute, USCIS also notes that the statute does not require that direct connection. In order to provide flexibility to meet the realities of the business world, USCIS will permit an alien who has been admitted to the United States on a conditional basis to remove those conditions when circumstances have changed. An individual investor can, at the prescribed time, proceed with his or her Form I-829 petition to remove conditions and present documentary evidence demonstrating that, notwithstanding the business plan contained in the Form I-526, the requirements for the removal of conditions have been satisfied. USCIS notes, however, that it is more beneficial for an immigrant investor to utilize the business plan contained in the Form I-526. As the Ninth Circuit Court of Appeals has recognized, if the alien investor is seeking to have the conditions removed from his or her status based on the business plan contained in the Form I-526, USCIS may not revisit certain aspects of the business plan, including issues related to the economic analysis supporting job creation. Chang v. U.S., 327 F.3d 911, 927 (9th Cir. 2003). If, however, the immigrant investor is seeking to have his or her conditions removed based on a business plan not consistent with the approved I-526, the Chang decision does not foreclose USCIS from requiring or requesting evidence to prove the element of job creation. This may include revisiting issues previously adjudicated in the Form I- 526, such as the economic analysis underlying the new job creation. USCIS also notes that, in the case of a petition affiliated with a regional center, the petitioner will only be able to claim indirect job creation if the new business plan falls within the scope of the regional center. AILA-DC 2012 FALL CONF. 766

459 PM-602-XXXX: EB-5 Adjudications Policy Page 21 V. Conclusion Congress created the EB-5 Program to promote immigrants investment of capital into new commercial enterprises in the United States so that new jobs will be created for U.S. workers. The EB-5 Program provides for flexibility in the types and amounts of capital that can be invested, the types of commercial enterprises into which that capital can be invested, and how the resulting jobs can be created. This flexibility serves the promotion of investment and job creation and recognizes the dynamics of the business world in which the EB-5 Program exists. Our careful and thoughtful adjudication of petitions in the EB-5 Program should be mindful of these important principles. AILA-DC 2012 FALL CONF. 767

460 MEMORANDUM Immigration Through Investment The EB-5 Program The Employment Based 5th Preference category (EB-5) Immigration through Investment Program grants non-americans and their immediate family members (i.e., spouse and children under the age of 21) permanent residency in the United States (and the path to U.S. citizenship) in a very timely manner. To qualify, an immigrant investor must invest at least $1 million in a commercial enterprise. If the investment is made in a rural area or in a target employment area (TEA) suffering from unemployment at least 150% the national average, the minimum required investment amount is reduced to $500,000. The immigrant investor and his/her immediate family may then be issued a two year conditional green card to immigrate to the United States. The residency is conditional because the commercial enterprise must then create a minimum of 10 direct full time permanent jobs for U.S. workers within two years of the immigrant investor becoming a U.S. permanent resident. One year and nine months after receiving conditional permanent residency, the immigrant investor must file a final application demonstrating that the investment created at least 10 fulltime permanent jobs for U.S. workers. Upon such a showing, the conditional status is removed and the immigrant investor and his/her family are granted full "unconditional" permanent residency. Regional Centers To simplify the program for foreign investors and allow for more efficient investment, the United States Citizenship and Immigration Services (USCIS) has designated certain areas throughout the country as regional centers. Regional centers are operated by independent investment companies that develop and operate job-creating commercial enterprises. An immigrant who invests in a USCIS designated regional center must still invest either $500,000 or US $1 million (depending on the location of the commercial enterprise), and demonstrate the creation of at least 10 new jobs after two years. However, such job creation may now be indirect, as well as direct. Generally, the regional center operators provide the information needed to demonstrate the creation of at least 10 direct or indirect jobs when the investor immigrant seeks to remove the conditional status on his/her green card. 655 Fifteenth Street Suite 810 Washington, DC fax: Philadelphia, PA Cherry Hill, NJ Harrisburg, PA Neptune, NJ Wilmington, DE AILA-DC 2012 FALL CONF. 768

461 EB-5 Investor Visa: Frequently Asked Questions Q. Can I get U.S. green card (permanent resident status) through investment in the U.S.? A. Yes, as 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. This visa is commonly referred to as the EB-5 Investor Visa. There are two ways to invest in the U.S. under this program: Own and Operate Your Business: This method requires an investment of $1 Million U.S. currency (unless the business is in a target employment area, whereby the investment requirement is reduced to $500,000) and that the investment directly creates at least 10 full-time jobs for U.S. workers within two years. Invest in a Certified Regional Center: This method still requires an investment of $500,000 or $1 million and the creation of at least ten (10) permanent, full time jobs for U.S. workers, but the jobs created may be indirect as well as direct jobs. Q. What is the process to obtain lawful permanent residency through investment? A. Obtaining lawful permanent resident status is a three-part process: First, an I-526 petition is filed, demonstrating that you have the required funds, that the funds were obtained from a lawful source, that the funds have been (or are in the process of being) invested, and that the investment meets USCIS requirements. Once the I-526 is approved, you are eligible to apply for an immigrant visa at your nearest U.S. consulate (if you are outside of the U.S.) or for adjustment of status (if you are already in the U.S.). If approved, you are given conditional lawful permanent residency for two years. Ninety (90) days before the end of two years of being a conditional resident, you must file form I-829 to remove the conditional status by demonstrating that the required jobs have been created by your investment. If your I-829 application is approved, you are granted unconditional lawful permanent resident status and are eligible to apply for U.S. citizenship after three more years. Q. What if I am already in the U.S. on another visa status? A. An individual may file an I-526 petition if they live abroad or are already in the U.S. The I- 526 petition process remains the same. If, however, you are already in the U.S. after the I-526 is approved, you may then file an I-485 Application for Adjustment of Status to Permanent 655 Fifteenth Street Suite 810 Washington, DC fax: Philadelphia, PA Cherry Hill, NJ Harrisburg, PA Neptune, NJ Wilmington, DE 2 AILA-DC 2012 FALL CONF. 769

462 Resident, as opposed to filing for an immigrant visa with your local U.S. consulate. There is no concurrent filing of an I-526 Petition and an I-485 Application to Adjust Status. Q. If I get a green card, do I have to live in the U.S.? A. Yes, an applicant for conditional or permanent residence to the U.S. must intend to immigrate to the U.S. and maintain as their primary residence a home in the United States. Q. Can I bring my family, and do they get permanent residency (a green card) if I invest in the U.S.? A. A qualifying immigrant investor is eligible to sponsor his/her immediate family, which includes a spouse and all children under the age of 21 years old. All members of the immediate family are granted conditional permanent residency upon approval of the I-526 and all are eligible to apply to remove the conditions after two years. Q. Can I sponsor my 21 year old or over child? A. While a child who is 21 years old (or older) cannot apply for residency under the parent s immigrant investment petition, a parent may gift that child the required investment funds in order for the child to apply individually as an immigrant investor. Q. What are the fees associated with applying for an investment visa? A. There are filing/application fees, legal fees, and investment management fees if an immigrant invests in a regional center. The current government filing/application fees are: I-526 Application: $1,500 I-485 Adjustment of Status: $1,070 (includes biometrics) per individual, if already in the U.S. (less for children under 14). Visa application fees: $405 per individual, if outside the U.S. I-829 application to remove conditional status after two years: $3750 plus an $85 biometric fee per family member including primary investor. Legal fees - variable. Regional Center Service Fees - variable 655 Fifteenth Street Suite 810 Washington, DC fax: Philadelphia, PA Cherry Hill, NJ Harrisburg, PA Neptune, NJ Wilmington, DE 3 AILA-DC 2012 FALL CONF. 770