LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Angelo A. Paparelli, Mar. 4, 2019
"Much digital ink has already been spilled reporting on the phantom tide of undocumented migrants supposedly breaching our Southern border. This article will address a different, but very-real immigration flood, and suggest ways U.S. employers, noncitizens, and their lawyers ought be emboldened to add to the deluge.
Ironically, it is about a dry subject – federal district court review of what immigration grievants claim are widespread, arbitrary, capricious and otherwise unlawful work-visa petitions and employment-based green card denials under Section 702 of the Administrative Procedure Act, 5 U.S.C. § 702 (APA). The agency triggering this agita is U.S. Citizenship and Immigration Services (USCIS), a component of the U.S. Department of Homeland Security (DHS). As immigration stakeholders are painfully aware, USCIS routinely flouts its own regulations, precedent immigration decisions, and the APA, all the while spurred on by the dog whistle of an executive order known as BAHA.
Although the focus here will be on USCIS’s rejections of employment-based immigration petitions, the same observations and strategies offered here readily apply as well to family-based requests for immigration benefits. The ideas below may also help in litigating the practices formulated in Washington by the Bureau of Consular Affairs which have resulted in growing numbers of visa refusals premised unlawfully on BAHA (notwithstanding the execrable principle of consular nonreviewability).
Increasingly, with a fervor heretofore unknown, USCIS is denying petitions that seek new or extended grants of employment authorization for prospective and current knowledge workers, while – in especially galling fashion – reopening and revoking previous work approvals for incumbent employees. (Media articles have reported the phenomenon here, here, here, here, here, and here, while Members of the House are demanding data and documents on these troubling developments.)
The reasoning of the denials has regularly relied upon a “jurisprudence” alien to our Anglo-American legal heritage – MSU (Make Stuff Up) law. The most egregious and recurrent refusals have involved the H-1B visa category for workers in specialty occupations. (USCIS recently offered its own analysis of why it often demands additional evidence when it is poised to deny H-1B visa petitions: “Understanding Requests for Evidence (RFEs): A Breakdown of Why RFEs Were Issued for H-1B Petitions in Fiscal Year 2018 USCIS”). As will be shown below, some of the most go-to grounds for H-1B petition denials are unanchored to statutory text, agency regulations and long-standing interpretive guidance can be found among the gamut of immigrant and nonimmigrant work visa classifications.
Old litigation wine in new bottles.
With mounting outrage, rebuked employers and noncitizen workers are channeling Howard Beale from the venerable film Network, and screaming, “We’re as mad as hell, and we’re not going to take this anymore!” Just like the film, it is an old story with modern resonance – old, because the APA has been around since 1946, and foreign workers, American employers, and their immigration lawyers have been suing USCIS since its inception in 2003, and long before that, the APA defendant of choice was the legacy agency, Immigration and Naturalization Service (INS).
An OILy solution slip-sliding away.
No one likes to be sued, and fewer still relish losing. The INS — then an agency in the U.S. Department of Justice (DOJ) — was no different. INS commissioners of yore found that when APA actions challenging their agency’s immigration decisions were brought in the various federal district courts, the local Assistant U.S. Attorney (AUSAs) assigned to the case often pressured INS to surrender and settle by issuing to the plaintiff the approval notices they failed to secure through the usual immigration petition and application process. AUSAs, INS perceived, much like most lawyers practicing in disparate legal fields, seemed genetically indisposed (pardon the imminent seafood puns) to pry open grimy immigration mollusks because they had more delectable fish to fry. Why fuss and suss complicated immigration law issues when there were “sexier” antitrust, intellectual property, organized crime, and other more intellectually-stimulating, and career-enhancing cases to pursue or defend? — or so INS reasoned.
The result: INS and DOJ built what they thought would be a better mousetrap in the hope that litigants in civil immigration suits would beat a path of retreat from the APA’s door. Thus was born in DOJ the Office of Immigration Litigation (OIL), a cadre of federal lawyers steeped, nerdlike, in the immigration-law dark arts of benefits-denials and deportation. Often, and sadly, the OILy strategy has worked. The Feds could deploy overpowering resources that few immigration litigators of employment-based APA cases could muster.
Fast forward to 2019: OIL attorneys simply cannot keep up quite as easily as before with the flood of immigration class actions and suits seeking to enjoin Executive Branch decisions to terminate Temporary Protected Status, DACA, and employment authorization for F-1 foreign students, and institute family-separation and child-imprisonment not to mention DOJ lawsuits asking federal courts to allow withholding of grant funds to sanctuary cities and states. OIL’s docket will likely be overwhelmed still more with the anticipated onslaught of suits opposing the “national-emergency” border funding and property-confiscation orders issued last month. As of August, 2017, OIL employed a comparatively small team, comprised of approximately 250 attorneys and 60 support staff.
Unsurprisingly, the immigration-litigation DeLorean is already headed back to the future on an OIL-slicked road. Immigration lawyers across the country report recently that USCIS is often caving on newly-filed APA suits, often even before DOJ provides an answer to the complaint, as Bloomberg Law’s Laura Francis reports (“Businesses Challenging Visa Denials Seeing Early Successes”).
To be sure, some white flags of surrender may be waived strategically. USCIS has proposed (and is overdue) to issue BAHA-friendly H-1B regulations in the future. Perhaps some court victories may be due to the agency’s desire to avoid federal court rulings that might restrict the agency from doing a full-BAHA rule in the near-term regulatory future.
Flood-the-zone immigration litigation.
Still, math is math, and resources are finite. Just as DOJ cannot mint new immigration judges fast enough for the tsunami of respondents in removal proceedings, the likelihood is that OIL faces a recruiting challenge of its own, since experienced immigration litigators willing to side with the government and defend restrictionist immigration policies are perhaps as rare as the chance of finding a snowball in Congress.
The message to employers, foreign workers, and their immigration attorneys who have received unjust USCIS denials is clear. The APA is your friend. It’s time to put on your big-boy and big-girl pants and go into federal court. (For those who need a little CLE loin-girding, AILA invites you to attend its 2019 Spring Federal Court Litigation Conference on March 12 in Chicago [and for early birds, I’ll be speaking at 8:05 AM with Diane M. Butler and Denyse Sabagh, on “Anticipating Suing The Government: “Game On!”].)
What you can learn there (or through self-study, or affiliation with an experienced immigration litigator) is that APA litigation challenging USCIS actions is often less taxing than the bet-the-company suits that capture headlines. The Immigration and Nationality Act does not requireexhaustion of administrative remedies before filing an APA action in Federal District Court. As a result, the usual problems with appeals to the USCIS Administrative Appeals Office – delay, de novo review and the finding of new or additional grounds to affirm the denial – can be avoided. Moreover, except in rare circumstances, the APA does not allow the usual civil discovery methods of interrogatories, requests for admissions, and depositions; rather, the case is adjudicated on the administrative record of proceedings. Better still, cases are resolved more quickly, by cross-motions for summary decision, or, by settlement (meaning your client gets its work visa or green card).
Head-fake litigation preparedness.
Even sweeter than causing the government to cave quickly, and issue an approval notice soon after the Federal District Court receives your APA lawsuit, is the act of instilling sufficient fear in the immigration adjudicator that he or she will be overturned or look bad for having issued an MSU denial in the first place.
Instilling fear requires effort. The visa petition or green card application (and any response to a USCIS request for additional evidence) must be accompanied by compelling evidence and be prepared so thoroughly and persuasively as to cause the USCIS adjudicator to believe that – if s/he denies the case – the next stop would be an APA challenge in Federal District Court where the adjudicator will be overturned, chided, embarrassed or otherwise placed in a bad light. While this does not mean that the employer or foreign worker must decide at the case preparation stage to sue USCIS, it should signify at least that the immigration lawyer will be well-positioned to persuade them that the suit should be filed. In other words, shooting blanks too often, and signaling head fakes insincerely may reap diminishing returns over time.
Still, there are numerous opportunities for APA challenges to employment-based visa and green card denials. Often, USCIS uses boilerplate references to assert legal propositions that are often incorrect or inapt in a particular case, and therefore legally vulnerable under an APA litigation challenge. Here are a few examples:
[The Department of Homeland Security (DHS)] accepts the employer’s petition (DHS [sic.] Form I-129) with the DOL-certified LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the occupation named in the labor condition application is a specialty occupation . . ., and whether the qualifications of the nonimmigrant meet the statutory requirements for H-1B visa classification. (Underlining and bolding added.)
Unfortunately for USCIS, the U.S Department of Labor (DOL) has described the highlighted text above as a “minor,” non-substantive update in the phrasing of its regulation. The prior version of 20 CFR § 655.705(b) — effective until January 18, 2001 — differed materially in that it did not contain the “whether the petition is supported by an LCA which corresponds with the petition.” See the December 20, 2000 Federal Register, the DOL in its preamble to the interim final rule explained its reasons for the wording change in the amended regulation, as follows:
Miscellaneous Matters. The Department has also made minor changes to the regulations . . . [Several] places (e.g., §§ 655.700, 655.705, 655.715), have been revised to reflect the amendments made by the ACWIA and the October 2000 Amendments, and to reflect the current Departmental organizational structure. (65 Fed. Reg. 80110, 80202 (Dec. 20, 2000), Supplementary Information; bolding added).
Aside from according weight to the DOL’s non-substantive re-phrasing of 20 CFR § 655.705, USCIS also misinterprets the ambiguous “Corresponds with” sentence in the regulation. Typically, USCIS’s H-1B denials unjustifiably change the phrase by imagining it to state instead that “the job title, DOL SOC Code and Wage Level selection process in the LCA must correspond with the job duties described by the employer in the H-1B petition or in an accompanying statement.”
This expansive restatement constitutes clear legal error. USCIS may not arrogate to itself the exclusive authority and justly-earned expertise of the DOL by pretending that the “Corresponds with” sentence somehow empowers an Immigration Officer to wade, without a lifesaver or any appreciable swimming ability, into the deep water of DOL prevailing-wage-determination procedures. Congress has conferred upon the DOL Secretary the exclusive authority and duty to certify an LCA unless it is incomplete or obviously inaccurate. See INA § 212(n)(1)(G)(final paragraph)(providing that an employer may not be prohibited from using “legitimate selection criteria” in a nondiscriminatory fashion if they are “relevant to the job,” and “normal or customary to the type of job involved”).
204.5 Petitions for employment-based immigrants.
(i) * * *
If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. Meeting three of the evidentiary standards listed in paragraph (i) (3) of this section is not dispositive of whether the beneficiary is an alien of extraordinary ability. The petitioner has the burden of proof to establish that he or she is an alien of extraordinary ability. (Emphasis added.)
Unfortunately for immigration adjudicators, INS and USCIS never incorporated the proposal into a final regulation. Tellingly, however, USCIS adopted the “comparable-evidence” text in the foregoing 1995 proposed rule when it promulgated a final rule. See 8 CFR § 204.5(h)(4)(“If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility”).
Even if the [USCIS adjudicator] has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is more likely than not” or “probably” true, the applicant or petitioner has satisfied the standard of proof. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (discussing “more likely than not” as a greater than 50% chance of an occurrence taking place).
The Ho ploy of many a USCIS adjudicator also ignores the fact that every petitioner must sign an acknowledgement confirming that all evidence is submitted under penalty of perjury, and thus carries with it the real potential for criminal prosecution under a host of federal criminal penalties including 18 U.S.C. § 1001, making it unlawful for any person to knowingly make a false statement which is material and is made with regard to any matter within the jurisdiction of any department or agency of United States, and 18 U.S.C. § 1546(a), making it unlawful and punishing any person who under penalty of perjury knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact.
* * *
If this article achieves anything, the hope is that employers, noncitizens, and their immigration lawyers who have been denied justice at USCIS should stop being so gosh-darned pusillanimous. The shrinking violet should no longer be the flower that defines you. Paraphrasing the much beloved, long departed immigration lawyer, Sam Williamson, father of an AILA past president and of a well-known inspirational speaker running for the Presidency in 2020, this author proclaims: “Sue the miscreants!”