New Articles
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October 20
CA5 on Retroactivity: Lopez Ventura v. Sessions

Lopez Ventura v. Sessions - "Because the application of § 1182(a)(2)(A)(i)(II) to Lopez Ventura is impermissibly retroactive, we grant the petition for review, reverse the order of the BIA, and remand for the BIA to determine whether Lopez Ventura was convicted of possessing marihuana or, instead, AB-CHMINACA."

[Hats off to Luke Abrusley, with help from Chuck Roth, Manny Vargas, Maria Baldini-Potermin and Alicia Triche!]

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October 19
Matter of Negusie, 27 I&N Dec. 481 (A.G. 2018)

Matter of Negusie, 27 I&N Dec. 481 (A.G. 2018)

"Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on: Whether coercion and duress are relevant to the application of the Immigration and Nationality Act’s persecutor bar. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (2012). The parties’ briefs shall not exceed 15,000 words and shall be filed on or before November 8, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before November 15, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before November 15, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to: United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530 All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored."

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October 18
What Disclaimer? ~ USCIS Ignores Labor Department Warning That the Occupational Outlook Handbook Never Be Used for Legal Purposes

Angelo A. Paparelli and Gabriel Mozes, Oct. 18, 2018 - "[Blogger’s Note:  Today’s post originates from a discovery – a gem hidden in plain sight – first brought to my attention by  Gabe Mozes, my immigration partner at SeyfarthShaw, and co-author of this piece. Great immigration lawyer that he is, Gabe raised a particularly galling example of how U.S. Citizenship and Immigration Services (USCIS) pursues extralegal, pretextual grounds, far afield from its supposed expertise, to deny employment-based requests for immigration benefits. In the birthing process, this post generated a slew of exchanges by email between us, much of it involving a friendly dispute over the eventual title. Initially, I proposed, “USCIS ~ The ‘Expertly’ Inexpert Immigration Agency.” He parried with, “What Disclaimer? USCIS Ignores DOL Instructions Not To Use OOH for Legal Purposes.” I responded with the suggestion to add before “USCIS” in the title, “Sciolist” (“[one] who pretends to be knowledgeable and well informed”), or “Ultracrepidarian” (“one who is presumptuous and offers advice or opinions beyond one’s sphere of knowledge”). You get the point, we compromised. His genial if begrudging email acceptance expressed mild disappointment that the post below beats around the bush: “[While] I like your angle, my original intent was to be more direct and hard-hitting.  I may draft a separate one. The time for skirting around the edges is over.”  So stay tuned.]

What Disclaimer? ~ USCIS Ignores Labor Department Warning That the Occupational Outlook Handbook Never Be Used for Legal Purposes By Angelo A. Paparelli and Gabriel Mozes

In our increasingly complex and specialized world, we all seek out experts — be they plumbers, arborists, fertility specialists, immigration lawyers, or other categories of seasoned practitioners. Why? Because getting the right result is important. True or not, experts are usually seen as having more than ordinary knowledge because they are credentialed through education, training, skill, long experience, or a mélange of these attributes.

Reliance on experts — most people generally assume — is preferable to taking a chance on an amateur. This assumption underlies a venerable judge-crafted principle of administrative law known as the deference principle, i.e., if the words in a statute are ambiguous, courts will ordinarily defer to an administrative agency’s interpretations of its own regulations administering the law.

The “principle of deference to administrative interpretations” – on its face – makes logical sense, as the U.S. Supreme Court recognized in its long-standing precedent decision, Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984)(Chevron). The principal rests on the hallowed concept of judicial restraint, and the recognition by the courts that whenever Congress enacts broadly applicable laws , it may also confer on relevant Executive Branch agencies the authority to interpret and implement what may later involve situations which Congress perhaps never anticipated:

[The deference principle applies whenever a] decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. Chevron, 467 US at 844. (Emphasis added.)

But what if a plumber, after merely skimming Arboriculture for Dummies, were to offer expert advice on how to cure diseased trees ? For a homeowner to defer to the plumber’s advice would be sheer folly.  Equally absurd would be if a seemingly infertile couple were to rely upon the guidance of an immigration lawyer expounding on advanced techniques of in vitro fertilization.

Unfortunately, however, ultracrepidarianism happens every business day at USCIS (the agency within the Department of Homeland Security charged with determining eligibility for such immigration benefits as work visas, travel permits, green cards, and naturalization). USCIS’s Immigration Service Officers (ISOs or simply, adjudicators) routinely offer ill-informed proclamations about immigration issues which Congress has rightly tasked the DOL to address and resolve.

Sadly, this has been going on for decades, not only in USCIS but also at its agency predecessor, Immigration and Naturalization Service (INS), where the former INS General Counsel cautioned INS that it had no authority to interfere with decisions by Department of Labor (DOL) that an employer had violated DOL H-1B (specialty-occupation visa) regulations, and therefore must be debarred by INS from sponsoring employment-based requests for immigration benefits.  See, INS GENCO Opinion, CO 212(n)P (April 12, 1994).

For years now, USCIS’s ISOs have blindly and lazily “borrowed” from the hard work, expertise, data repositories, research materials, and regulations of the DOL, a distinct federal department with specialized immigration-related domain knowledge, experience and training over such employment-related matters as job requirements, wages, and working conditions.

One class of the USCIS adjudicators’ favorite pontifications are the inferences they draw from the Occupational Outlook Handbook (OOH), a DOL Bureau of Labor Statistics (BLS) publication intended to provide the public with “career information on duties, education and training, pay, and outlook for hundreds of occupations.”

When penning decisions denying employment-based immigration benefits, USCIS adjudicators unfortunately are wont to wax poetic about statements in the OOH as if they were spouting “thou shalt nots” from the Decalogue. For example, in response to U.S. employer visa petitions seeking the okay to employ or continue employing H-1B workers in specialty occupations, USCIS officers routinely issue Requests for Additional Evidence (RFEs) stating that the agency “routinely consults the Department of Labor’s [OOH] for information about the duties and educational requirements of particular occupations.” USCIS then uses the OOH description for a particular job, say a Management Analyst, to argue that the position does not qualify for an H-1B under the “specialty occupation” standards at 8 CFR § 214.2(h)(4)(iii)(A). This is because ISOs interpret the OOH as saying that the job cannot be a specialty occupation since some employers are willing to hire persons with a bachelor’s or master’s degree in various academic majors, or that a small percentage of employers will accept someone with less than a baccalaureate degree.

The problem with the USCIS adjudicators’ wholesale lifting of OOH excerpts – which are often taken out of context or misquoted – is that ISOs completely disregard the BLS’s own published restrictions contained in its “Disclaimer” accompanying the OOH, which provides in relevant part:

[The] OOH provides a general, composite description of jobs and cannot be expected to reflect work situations in specific establishments or localities. The OOH, therefore, is not intended to, and should never, be used for any legal purpose. For example, the OOH should not be used as a guide for determining wages . . . BLS has no role in establishing educational . . . standards for any occupation. . . The education information in the OOH presents the typical requirements for entry into the given occupation and does not describe the education and training of those individuals already employed in the occupation. . . . [The] information in the OOH should not be used to determine if an applicant is qualified to enter a specific job in an occupation. (Emphasis added.)

Another illustration confirming USCIS adjudicators’ purloining of OOH excerpts is found in their common practice of rigidly relying on this publication when deciding whether long-delayed green card applicants can invoke the “job flexibility” benefits granted by Congress that permit workers to change jobs or employers without being required to go back to the end of the immigrant visa queue.  This “job-portability” law allows green card applicants to pursue career advancement despite USCIS or visa-quota backlogs of more than six months as long as the new job is in the “same or [a] similar occupational classification.” See, the USCIS Adjudicator’s Field Manual, Chapter 20.2(e), Note 5 (“ISOs may reference additional resources to determine whether [two] jobs are in the same or similar occupational classification(s), including, the DOL Bureau of Labor Statistics’ [OOH]”).

Unfortunately, USCIS adjudicators’ misbehavior in poaching from the DOL is not limited to the OOH. Yet another USCIS encroachment on DOL’s immigration turf involves reliance in the H-1B “Specialty Occupation” work visa category on an outdated “itinerary” requirement incorporated into agency regulations based on the immigration laws in existence in 1952, a rule intended to maintain agency oversight of the intra-U.S. meandering of athletes and entertainers (who have had their own visa categories, the O and P classifications, since 1990). Immigration litigator, Jonathan Wasden, in a tour de force complaint, ITServe Alliance v. USCIS, filed October 11, 2018 in the Federal District Court for the DC Circuit, calls out USCIS interloping in its recurrent attempts to define the H-1B “area of intended employment,” found in DOL regulations, even though USCIS only has statutory authority to determine if the job and the worker involve a specialty occupation.

Whatever the validity or benefit of the agency deference principle in other contexts, its application to the USCIS adjudicators’ mass appropriation and misapplication of DOL source materials must be stopped. USCIS must not be given Chevron deference when the DOL itself cautions that the OOH (1) should “never” be used “for any legal purpose,” (2) “should not be used to determine if an applicant is qualified to enter a specific job in an occupation,” and (3) “does not describe the education and training of those individuals already employed in the occupation.”

Simply put, the courts or Congress should take USCIS out of the business of pilfering and impersonating DOL expertise."

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Prof. Stephen W. Yale-Loehr on Potential Student Visa Rule

Elizabeth Redden, IHE, Oct. 18, 2018 - "The Trump administration published notice on Wednesday that it intends to propose a new rule in fall 2019 establishing a maximum period of authorized stay for international students and other holders of certain nonimmigrant visas.

The government says the planned rule is "intended to decrease the incidence of nonimmigrant student overstays and improve the integrity of the nonimmigrant student visa." Advocates for international exchange are worried, however, that the introduction of such a rule could limit flexibility for international students and scholars and undercut efforts by U.S. universities to recruit them. The number of international students in the U.S. declined in the 2017-18 academic year after years of steady growth.

Currently, student visas are generally valid for what's known as “duration of status,” which means that international students in the U.S. can stay indefinitely as long as they maintain their status as students. Students can fall out of status by failing to maintain a full-time course of study or working without authorization, but as long as they follow the regulations associated with their student visa, they can stay in the U.S., transfer to other institutions and progress from one academic level to another. Effectively, the duration of their time in the U.S. is dictated by the duration of their academic programs.

The new proposed rule planned for next September would replace the authorized period of stay from “duration of status” to a fixed maximum term for certain nonimmigrant visa holders, including holders of F-1 student visas. The notice published Wednesday does not specify what the maximum period of stay for student visa holders would be, but it does say that there would be options for extensions in each applicable visa category.

“The failure to provide certain categories of nonimmigrants with specific dates for their authorized periods of stay can cause confusion over how long they may lawfully remain in the United States and has complicated the efforts to reduce overstay rates for nonimmigrant students,” a statement justifying the planned rule says. “The clarity created by date-certain admissions will help reduce the overstay rate.”

Jill Welch, the deputy executive director for public policy at NAFSA: Association of International Educators, issued a statement describing the proposed change as a break with decades of precedent.

"For decades, international students and scholars have been granted immigration status known as 'duration of status,' or 'D/S' that lasts for the period of time they are engaging in their studies and practical training. They are carefully screened, vetted, and monitored through the U.S. Department of Homeland Security’s Student and Exchange Visitor Information System (SEVIS). Maintaining this policy is necessary because the time for study or research can fluctuate given the changing goals and actions of the student or scholar. We are in a global competition for talent, and we need to ensure our policies are welcoming," Welch said.

She added, “As universities and colleges across the country work to welcome highly valued, hardworking international students and scholars to our campuses and communities, their efforts are being undermined by policies and regulations that further close our doors and pull up America’s welcome mat.”

The Trump administration has pursued a number of regulatory and subregulatory changes that are in various ways shaping the landscape for international education in the U.S. Among the most significant was a recent change in determining how international students admitted into the U.S. for duration of status will be found to accrue "unlawful presence," a determination that could subject them to future five- or 10-year bars on re-entering the country. Final policy guidance issued in August holds that unlawful presence will begin accruing the day after a student stops pursuing a course of study or otherwise violates his or her immigration status, rather than -- as was the case under the previous policy -- the day after the Homeland Security department issues a formal finding of a violation in the course of adjudicating a request for another immigration benefit or the day after a judge issues an order of deportation.

Stephen Yale-Loehr, a professor of immigration law at Cornell University, cautioned that the planned rule on duration of visas may never come to fruition. "Historically, there are lots of items on the semiannual regulatory agenda that never even make it into a proposed rule," he said. "If it happens, it’ll happen slowly. They’ll have to come out with a proposed rule and then ask for comments and then they have to look at those comments before they issue a final rule, and the final rule could be subject to challenge by the courts. No one needs to worry about this immediately."

"Having said that, if a rule like this does take effect there are pros and cons," Yale-Loehr continued. "It would remove some flexibility for people who may take longer than anticipated to finish their degrees. On the other hand, the unlawful presence guidance that came out in August creates a lot of uncertainty for foreign students because of the fact that right now they don’t have a fixed time limit, so they may be deemed after the fact to have been here unlawfully. Having a fixed duration would at least give a bright line for measuring when unlawful presence would start." "

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Sincerely,
Daniel M. Kowalski
Editor
dkowalski@david-ware.com

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