Does a Beneficiary have Standing to Challenge a Petition Denial in Federal Court? More Judges are Saying ‘Yes’

Posted in Second Circuit, USCIS

A recent Second Circuit ruling marks the latest occurrence of a trend in federal court cases granting standing to beneficiaries in suits to challenge USCIS’ decisions, paving the way for more lawsuits against the agency following denials of petitions or appeals.

The idea that only a petitioner may challenge a petition in federal court is now being chipped away. Under the agency regulations[1], appeals of decisions to administrative bodies – such as to the AAO or BIA –  may not be filed by a beneficiary. Some courts, accepting the Department of Justice’s oft-advocated position, held that this regulation would also strip a beneficiary’s standing to void an agency denial in federal court through a declaratory judgment or remand action.

But can such a regulation really extend to the federal courts, where the Supreme Court’s Lujan precedent[2] establishes that constitutional standing applies once a person demonstrates (1) an injury‐in‐fact; (2) that is fairly traceable to the challenged conduct of the defendant, and (3) can likely be redressed by a favorable decision by the district court?

In a published opinion on Dec. 30, 2016, in Mantena v. Johnson, the Second Circuit held that the regulation does not apply to bar a beneficiary to be a plaintiff in federal court. Ms. Mantena was an H-1B and I-140 beneficiary who had changed employers pursuant to the AC21 statute while her Green Card application was pending. Her previous employer had pleaded guilty to mail fraud regarding a different petition and USCIS revoked all of its approved petitions. Ms. Mantena was unaware of this development until her I-485 was denied. The district court, following an unsuccessful USCIS appeal, sided with the government and dismissed her claims for a lack of jurisdiction. On appeal, the Second Circuit disagreed, finding that she met the standing requirements to bring a suit.

In so doing, the court went a step beyond a recent Third Circuit case, Shalom Pentecostal Church.[3] One of the issues in Shalom was a similar standing argument brought by the government that the pastor-beneficiary was unable to challenge a denied EB-4 petition in federal court; instead only the church-petitioner could be a plaintiff. While heavily favoring the pastor’s arguments by stating “[T]he cases relied upon by the Government appear limited to the administrative agency context…” the court found that the pastor could nonetheless be a plaintiff because the EB-4 Religious Ministers category allows for self-petitioning.

As this interesting area of case law continues, one can expect to see more petition beneficiaries willing to litigate the standing issue alongside, or potentially independent of, their petitioners. Please contact your Greenberg Traurig attorney for more information or assistance on potential matters involving immigration litigation.

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[1] 8 C.F.R. § 103.3(a)(1)(iii)(B).
[2] See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560‐61 (1992).
[3] Shalom Pentecostal Church  v. Acting Secʹy U.S. Depʹt of Homeland Sec., 783 F.3d 156 (3d Cir. 2015). In the interests of disclosure, I served as counsel pro hac vice in the underlying U.S. District Court case while employed at a former firm. There we were also successfully able to argue that the regulation did not preclude the beneficiary from being a party to the suit. See Shalom, 2013 WL 162986, at *3-4.

March 1 Deadline to Register for Temporary Protected Status (TPS) for Yemen

Posted in Temporary Protected Status

On Sept. 3, 2015, the Secretary of Homeland Security designated Yemen for Temporary Protected Status (TPS) for an 18 month period due to the ongoing armed conflict in the country. The deadline to register for TPS for Yemen is March 1, 2016. To register for TPS,  eligible nationals of Yemen (and people without nationality who last habitually resided in Yemen) must file an application with USCIS. Once the application is approved, they are permitted to remain in the United States until March 3, 2017. In addition, those registered for TPS will be eligible to apply for work authorization in the United States.

To qualify for TPS, the applicant must satisfy the following criteria:

  • maintained continuous physical presence in the United States since Sept. 3, 2015;
  • resided continuously in the United States since Sept. 3, 2016.

Applicants over the age of 14 must also undergo security checks, and those with a criminal record or who pose a threat to national security are not eligible for TPS. Applicants may also request a fee waiver from USCIS from the application by submitting the appropriate request.

Please contact your Greenberg Traurig attorney for more information or assistance on this matter.

Successor in Interest in H-2A Cases

Posted in H-2A, Immigration Law

The Office of Foreign Labor Certification has issued guidance in the scenario where a corporate restructuring or sale of a business has occurred and there are H-2A employees working under that employer. Once the successor in interest has become the employer of the workers under the H-2A certification, the employer may still use the certification that was issued, but only if all obligations, liabilities, and undertakings from that certification are assumed. Though there is no explicit process in which the certification may be assumed, interpretations of the H-2A regulations make it clear that the successor in interest entity may still use the certification.

Prior to employing the workers under the successor in interest entity, the Chicago National Processing Center (NPC) should be notified by submission of the following:  a sworn written statement that includes the certification ETA number ; the business situation that resulted in the successor in interest; the contact information and legal name of the successor in interest entity; and confirmation that the successor in interest entity will assume all obligations, liabilities, and undertakings arising from the certification.  A copy of the submission to the Chicago NPC should also be added to the employer’s document retention file.  It should be of note that the Chicago NPC will keep the submission for its files, but not to necessarily confirm or deny the validity of the successor in interest analysis.

Under 20 C.F.R. §655.100(b), all circumstances will be viewed in totality.  The factors that may be considered when determining whether a successor in interest has occurred includes, but is not limited to:

  • Substantial continuity of the same business operations;
  • Use of the same facilities;
  • Continuity of the work force;
  • Similarity of jobs and working conditions;
  • Similarity of supervisory personnel;
  • Whether the former management or owner retains a direct or indirect interest in the new enterprise;
  • Similarity in machinery, equipment, and production methods;
  • Similarity of products and services; and
  • The ability of the predecessor to provide relief.

DHS Extends Temporary Protected Status for Sudan

Posted in Department of Homeland Security, Sudan, Temporary Protected Status

Jeh Johnson, Secretary of Homeland Security, has extended Sudan’s designation for Temporary Protected Status (TPS) for an additional 18 months. Conditions in Sudan have been cited as unsafe for nationals to return due to the ongoing armed conflict. The extended designation will be effective from May 3, 2016, until Nov. 2, 2017. 

Current TPS Sudan beneficiaries who need to extend their status will need to re-register during a 60-day window spanning from Jan. 25, 2016 until March 25, 2016. It is advised that the re-registration take place as soon as possible. 

The 18 month extension will also mean that those who re-register will be able to apply for a new Employment Authorization Document (EAD).  Re-registrants who do so during the 60 day period will receive an EAD with a Nov. 2, 2017 expiration date. For EAD applicants who will not receive their EAD until after the current expiration date of May 2, 2016, USCIS will automatically extend current TPS Sudan EAD expirations to Nov. 2, 2016. 

For assistance re-registering, please contact your Greenberg Traurig attorney. 

DHS Granted Extension to May 10, 2016 to Implement New F-1 STEM OPT Program

Posted in Department of Homeland Security, OPT, STEM

On Jan. 23, 2016, the U.S. District Court for the District of Columbia granted the Department of Homeland Security (DHS) additional time–until May 10, 2016–before the court’s vacatur of the 2008, 17-month Optional Practical Training (OPT) STEM Extension rule would go into effect. DHS requested this additional time to review more than 50,000 comments it received in response to the proposed rule. As previously reported, WashTech opposed DHS’ request arguing that the District Court did not have jurisdiction. However, the District Court found that because an extension of the stay would not have any effect on the issues currently on appeal, it retains jurisdiction over defendant’s motion, and need not seek remand.

Judge Ellen Segal Huvelle stated in her decision:

“… the equities that warranted a stay in the first place—undue hardship to STEM OPT participants and employers—remain the same. The significance of that hardship cannot be overstated. According to DHS, there are approximately 23,000 STEM OPT participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations.”

As the annual H-1B cap approaches, the anticipation of the implementation of this new rule remains strong, as the new ruling could affect many students whose cases are chosen in the lottery selection.

A Step in the Right Direction: USCIS Circulates Draft Extraordinary Ability Guidance

Posted in Immigrant Visa, Immigration Law, O-1 Visa

On Jan. 21, 2016, USCIS published a new Policy Memorandum seeking to provide guidance regarding the scope of evidence eligible to be considered in the adjudication of certain O-1 petitions. The comment period to the memo, PM-602-0123, ends on Feb. 22, 2016.

By way of background, the O-1 visa category is available to those individuals sponsored by a U.S. employer or agent that possess extraordinary ability in the sciences, arts, education, business, or athletics, or those that have a demonstrated record of extraordinary achievement in the motion picture or television industry. One can qualify for an O-1 visa if he or she “has been nominated for, or has been the recipient of, significant national international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award.” These applicants (think of people like Paul McCartney, Steven Hawking, Malala Yousafzai, etc.) have a relatively easy path to qualifying for an O-1 visa.

But for the vast majority of prospective O-1s that have not achieved such an award, there is another route. The O-1 regulations allow one to qualify for the visa by meeting at least three enumerated criteria, generally focusing on the applicant’s contributions and peer/media recognition in his/her field. For O-1A (sciences, arts, education, business, and athletics) and certain O-1B (arts) petitions, petitioners can also include “other comparable evidence” where the enumerated criteria do not “readily apply to [an] occupation”. But what does that mean in practice?

Let’s imagine an O-1A for a lawyer that won particularly lucrative cases, but they were too niche to generate “published material in professional or major trade publications or major media about” her as required by the regulation. These hypothetical cases also do not have the precedential value to be “…contribution[s] of major significance in the field.” Suppose instead, the lawyer wanted to demonstrate her eligibility for the visa with “other comparable evidence,” in this case, the value of the judgments won for clients who might be relatively unknown. Could she do so only if showing that none of the regulatory criteria apply to her candidacy? A majority do not? One does not?

In other words, is the ability to use “other comparable evidence” a ‘catch-all’? Or is it only reserved for those out-of-left field kinds of cases that USCIS could not think of when they were writing the regulations? The ambiguity confused stakeholders and adjudicators alike. The draft memo attempts to resolve this issue, and fortunately it allows greater flexibility in qualifying for the O-1.

Under the memorandum, a “petitioner must only show that a particular criterion does not readily apply to the beneficiary’s occupation before a petitioner may offer comparable evidence with regard to that criterion. The petitioner does not have to show that all or a majority of the criteria do not readily apply before comparable evidence may be considered.” Specifically, a petitioner must explain why a criterion does not readily apply, and why alternative evidence is comparable.

Taking the lawyer example above, a petitioner might thus be able to argue that there may not be readily applicable “nationally or internationally recognized prizes or awards for excellence” in lawyering; instead the financial rewards to her clients earned in the courtroom are more probative of her abilities.

The USCIS draft memo seems to be a step in the right direction, and hopefully will allow for even greater flexibility following the comment period.

U.S. Customs and Border Protection Provides Additional Guidance on Implementation of New Visa Waiver Program Law

Posted in U.S. Customs and Border Protection (CBP), U.S. Department of State ("DOS"), Visa Waiver Program

This post updates our post from Jan. 22, 2016, concerning guidance released by the U.S. Department of State about implementation of the Visa Waiver Program (VWP) Improvement and Terrorist Travel Prevention Act. We have updated the post to provide a summary and link to additional information published by U.S. Customs and Border Protection (CBP) concerning the implementation and operation of the new VWP law.  The CBP document can be accessed here.

In its FAQs, CBP reiterates the two new barriers to VWP participation based on travel and dual nationality.  CBP reports that ESTA travelers who are “known” to be included in the dual national category will be notified in late January that their ESTA is no longer valid.  CBP also reports that it is working on notification to ESTA travelers who have traveled to Iran, Iraq, Syria, or Sudan.

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H-1B Cap FY2017: Effective Immigration Strategies For Employers – Hiring Foreign Professionals

Posted in Events, H-1B, Immigrant Visa

As the US economy recovers, the demand for H-1B visas is skyrocketing.  Please join our experienced immigration attorneys for this seminar which will provide important legislative updates and share effective strategies for succeeding this upcoming H-1B cap season.

Topics will include:

  • Lessons learned from the last cap season
  • New fee schedule affecting certain employers
  • Compliance and post-filing changes to the details of employment
  • Cap Gap/STEM OPT and related travel issues
  • Plan B (and C) – alternatives to H-1B
  • Strategies for petition preparation and filing

Sign up for the GT Business Immigration and Compliance H-1B Cap Seminar by clicking on the location below:

U.S. Department of State Announces Implementation of New Visa Waiver Program Law

Posted in Department of State, U.S. Department of State ("DOS"), Visa Waiver Program

On Jan. 21, 2016, the Department of State (“Department”) announced that it had begun the implementation of changes to the Visa Waiver Program (VWP), which were enacted as part of the Consolidated Appropriations Act, 2016.  The Department reiterated that nationals of the 38 VWP countries who had traveled to Iran, Syria, Iraq, or Sudan after March 1, 2011, would no longer be eligible to use the VWP.  We refer to these as travel restrictions.  Furthermore, as provided by the new law, nationals of VWP countries who are also nationals of Iran, Syria, Iraq, or Sudan would also not be eligible to participate in the VWP.  These are nationality restrictions.  It is important to note that Canadian citizens, who are not required to obtain a visa for purposes of U.S. travel (and are not VWP participants), are not affected by the new laws.

In its announcement, the Department provided further clarification in regard to the new law’s implementation.  As of Jan. 21, 2016, any individual who currently holds a valid Electronic System for Travel Authorization (ESTA) and who had indicated on the ESTA application that they held dual nationality with Iran, Syria, Iraq, or Sudan, will have their ESTAs revoked.  We note that under the terms of the new VWP law, additional countries may be added to the current list.

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OSC Issues Updated Guidance on Internal I-9 Audits and Determining Validity of Documentation Provided

Posted in I-9 Audit, OSC

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued an updated Technical Assistance Letter (TAL) on Jan. 7, 2016, relating to an employer’s internal Form I-9 audit procedures. The TAL addresses: 1) an employer’s obligation to prevent discrimination in compliance with the anti-discrimination provision of the Immigration Reform and Control Act (IRCA);  and 2) the steps an employer should take with respect to Permanent Residence Cards when the documentation presented by an employee does not appear to be facially valid. This updated TAL supersedes the TAL issued on Oct. 23, 2015.

The OSC makes it clear that an employer, when conducting an internal audit, must conduct the audit in a consistent manner, apply the same levels of scrutiny to all Form I-9 documentation, treat all employees the same, and apply the same level of scrutiny based on citizenship, immigration status, or national origin. The OSC further states that an employer may violate the IRCA’s anti-discrimination provision if it subjects certain documentation to additional scrutiny based on citizenship, immigration status, or national origin.

With respect to an employer questioning the authenticity of Form I-9 documentation provided by an employee during the Form I-9 compliance process, particularly Permanent Residence Cards, OSC refers to the intra-agency initiative between the Department of Justice’s (DOJ) Civil Rights Division and the Department of Homeland Security’s (DHS’) U.S. Immigration and Customs Enforcement (ICE). The agencies collaborated to provide guidance in December 2015 to address common questions that arise when employers conduct internal reviews of their Forms I-9. The DOJ/DHS guidance reminds employers that they “are required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation.” In addition, when conducting an internal audit, “employer[s] should not request documentation from an employee solely because photocopies of the documents are unclear.” Instead, employers should address this concern with an employee and give the employee an opportunity to provide a different document from the List of Acceptable Documents. The employer should not ask for alternative documentation if the employee presents the original version of the same documentation initially presented and if, upon inspection, the employer determines that the document appears genuine and reasonably related to the employee. Should the original document be unavailable or it is determined by the employer to not be genuine after inspection, then the employer may not ask for specific alternative documents and the employee should be given the opportunity to provide a different document from the List of Acceptable Documents.

Although this OSC guidance was provided in the context of Form I-9 audits, employers are advised to keep these policies in mind when initially completing Form I-9s for new employees at the time of hire.

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