Importance of Maintaining Status after September 11 (Part II)
Q: Are INS and DOL increasing their enforcement of employer sanctions and labor protections?
Employers can expect more DOL and INS enforcement of employer sanctions and labor protections. INS's shifting interpretations and methods of operation should encourage employers to take proactive curative steps to show employer record-keeping compliance is up to par with DOL and INS regulations.
Also, there has been a call for a digital national identity card. Oracle, the software company headed by Larry Ellison, has offered the government free software to create national identity cards and digital identification for all Americans and foreign nationals. Furthermore, as shown by the recent indictment of 69 individuals in Utah arising from an audit of airport security measures, the government has shown its willingness to use the I-9 as a basis for criminal prosecution. Aside from criminal enforcement, there have also been instances in which employers' failure to comply with INS requirements have served as a catalyst for the INS to determine that the alien employees are out of status. Therefore, it is wise for employers to be proactive and address all compliance issues before the INS or DOL does.
Q: How should I deal with a client's lapse in status? For example, what should I do if a client is laid off by his or her employer?
Individuals, whether intentionally, innocently or unwittingly, may fall out of status. While the INS has discretion to forgive a lapse in status in connection with an extension of status or change of status application, an "extraordinary circumstances" standard must be established.
As a result of the current recession, many H-1B workers have been terminated or benched. These individuals are likely viewed by the INS as being out of status. One could argue, in the context of a request for relief based on extraordinary circumstances, that it is the alien's conduct that should be the focus of the INS. If the alien is terminated through no fault or his or her own, he or she should be considered to have been subject to an extraordinary circumstance that was beyond his or her control. Matter of Siffre, 14 I& N Dec. 444 (Comm. 1973), gives some justification, at least in dictum, to that argument by referring to the issue of an alien falling out of status by "his own conduct."
Practitioners should also note that there is no formal grace period yet available. In June 2001, Michael Pearson released a memo indicating that INS was considering a 60-day grace period. Michael Pearson, Memorandum to Service Center Directors et al (HQ 70/6.2.8), Initial Guidance for Processing H-1B Petitions, June 19, 2001, posted on AILA InfoNet, Doc. No. 01062031 (June 20, 2001). However, that memo also expressly warned that no one should rely on that provision. One should also consider the recent AILA/Nebraska Service Center (NSC) liaison minutes, in which NSC commented that an alien who had been terminated from H-1B employment thirty days ago would have spent too much time out of status for NSC to exercise favorable discretion in his or her case. AILA, INS Nebraska Service Center Liaison Minutes, posted on AILA InfoNet, Doc. No. 01101833 (October 18, 2001). When submitting these cases, practitioners may want to refer to the INS Commissioner's memo on prosecutorial discretion to outline the factors for a favorable grant of discretion. Doris Meissner, Memorandum to Regional Directors, et al. (HQ OPP 50/4), Exercising Prosecutorial Discretion, November 17, 2000, posted on AILA InfoNet, Doc. No. 00112702 (November 27, 2000). Perhaps this will lead to a favorable outcome at the administrative level, but if not, it will also lay out the record for possible appeal or litigation.
You should also consider AC21 and its H-1B portability and adjustment of status portability provisions, as well as the availability of open-market employment authorization for adjustment applicants, as means of surviving a termination. Lawyers must become well versed in discretionary grants, exceptions and savings clauses that exist in current law because until time passes, current law is the only means to show that clients are eligible for forgiveness.
Q: How does a lapse in status affect an alien's ability to adjust status?
In terms of adjustment eligibility, the two subsections of INA § 245 to master are INA §§ 245(k) and 245(i). To obtain information on using these provisions to your client's advantage, see the article Never Say i (Unless You Must): Employment-based Options for Adjustment of Status that Avoid INA § 245(i), by A. Paparelli and J. Valdez, which can be found at http://www.entertheusa.com/publications.htm. For a discussion of § 245(i) and its applicability as a means to adjust the status of asylees, parolees, aliens with qualifying family relationships, and persons who entered the United States without inspection, see, e.g., Lorna Rogers Burgess, Advanced Practice\Removability\Unlawful Presence and Bars to Admissibility, Immigration & Nationality Law Handbook, Vol. II (AILA 1998-99); Stanley Mailman, The New Adjustment of Status Law, Background and Analysis, 44 Interpreter Releases 1505 (Nov. 14, 1994). Also see Q & A exchange on ilw.com listserve.
More than ever, this is a time when lawyers can add value by providing well documented cases in initial submissions, including in extensions of status, providing good evidence in response to INS request for evidence, as well as appealing or litigating in response to denied petitions and visa refusals.
Editor's Note: Part I of this article appeared in the "January 7, 2002, issue of Immigration Daily.
About The Author
Angelo A. Paparelli (firstname.lastname@example.org), Certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, has been practicing business-sponsored immigration law for over 20 years. He is the managing partner of Paparelli & Partners LLP ( www.entertheusa.com), a firm in Irvine, California that practices exclusively immigration and nationality law. Mr. Paparelli is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment-based work visas. His experience also includes the U.S. immigration aspects of international tax and estate planning. From 1991 to 1996, Mr. Paparelli served as co-Chairman of the Immigration and Nationality Law Committee of the American Bar Association's Section on International Law and Practice. He also served from 1988 to 1994 as an elected governor on the Board of Directors of the American Immigration Lawyers Association. He is named in the 1990-2002 editions of Best Lawyers in America under Immigration Law.