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Utilizing Business Immigration Strategies In Removal Proceedings

by Cyrus D. Mehta

INTRODUCTION

The practice of immigration law has become increasingly specialized in recent years. Many attorneys who have busy immigration law practices may have no idea about representing a client in removal proceedings. Even if they do have knowledge of removal proceedings, they feel daunted about appearing before an immigration judge. Likewise, many attorneys who regularly represent people in removal proceedings may not be conversant with the nuances of business immigration.

This practice advisory will provide an overview of business immigration strategies that could be adopted to obtain relief in removal proceedings, either independently, or in conjunction with other available avenues of relief.

In a post-September 11th world, we have seen increased enforcement against non-citizens of certain nationalities, resulting in their placement in removal proceedings. It is becoming ever important for the immigration practitioner to possess a holistic understanding of various strategies that can help a client defend himself or herself against deportation. Deportation is often worse than many criminal sentences as it could lead to life long banishment from the country where one has developed extensive ties, both economic and personal. It is important, therefore, to possess as many defenses in one's arsenal to stave off deportation.

While filing adjustment applications based on a marriage to US citizen, cancellation of removal, asylum and withholding of removal, or voluntary departure, are often used as defenses against removal, one can also attempt to avoid removal via an employment-based petition. Exploring such a strategy is necessary in light of the fact that over thirteen thousand people have been placed in removal proceedings after reporting for Call-In Special Registration.

SECTION 245(i)

Many who reported for special registration are beneficiaries of labor certification applications that were filed prior to April 30, 2001. April 30, 2001 was an important deadline the last day prior to the sunset of Section 245(i) of the Immigration and Nationality Act ("the Act" or "INA").

Section 245(a) of the Act only allows a non-citizen to adjust status in the US to permanent residence if he or she has always maintained nonimmigrant status. The only exception is found under Section 245(c), providing for a person whose basis for the application is as a spouse, parent or minor child of a US citizen, and who was initially inspected or paroled into the US. Section 245(i), on the other hand, allows a person to apply for adjustment of status notwithstanding the fact that he or she entered without inspection, overstayed, or worked without authorization.1 Thus, a person who has violated immigration status would still be able to adjust to permanent residence if a fee of $1,000 accompanied such a filing and as long as this person (including the spouse and children) is the beneficiary of any labor certification or petition filed under Section 204 of the Act on or before April 30, 2001. Such a petition would include the filing on or before April 30, 2001 of Form I-140 (Immigrant Petition for Alien Worker), Form I-130 (Petition for Alien Relative), Form I-360 (Petition for Amerasian, Widow(er), Battered Spouses, or Religious Workers), and Form I-526 (Immigrant Petition by Alien Entrepreneur).

Section 245(i) previously sunset on January 14, 1998, but was revived under the LIFE Act amendments to include any application filed on or before April 30, 2001. Under the latest amendment, if a person filed after January 14, 1998 and before April 30, 2001, he or she had to be physically present in the US on or before December 21, 2000 in order to take advantage of Section 245(i).

If Section 245(i) is unavailable to a person who is out of status, that individual must leave the US and apply for the immigrant visa at a US Consulate overseas. This could pose a Catch-22 for someone who may trigger the three or ten year bars against re-entry into the US upon departing the country. If the person leaves the US for obtaining the immigrant visa at a US consular post overseas, he or she will be unable to return for either three or ten years. INA Section 212(a)(9)(B)(i).

BACKGROUND ON LABOR CERTIFICATION

The Call-in Registration initiated by John Ashcroft's Department of Justice requires males from mainly countries with significant Muslim populations to register by a certain date, provided they entered on nonimmigrant visas before a certain cut-off date. Even though a non-citizen may have a pending labor certification at the time of registration, he most likely would be placed in removal proceeding if he has otherwise violated his nonimmigrant status. The mere filing of a labor certification application on behalf of a non-citizen, even pursuant to Section 245(i), does not provide status for a person to remain the US. As will be discussed later, it is only when the labor certification gets approved can one file the next immigrant visa petition, Form I-140, along with a concurrently filed application for adjustment of status, Form I-485. Although many with pending adjustment applications were also placed in removal proceedings, the policy in many BCIS offices was to allow the registrant to continue the application without placing him in proceedings.

As a background, labor certification is generally the first step when an employer sponsors a foreign employee for a green card. In order to obtain labor certification, the employer must establish that it was unable to find sufficient US workers for the position.

There are generally two ways for an employer to file a labor certification application. The traditional method involves the employer filing an application with a State Workforce Agency (SWA). After the application is reviewed, the SWA closely supervises the employer's recruitment effort to find out whether or not US workers are available for the position.

The fast track method, known as Request for Reduction in Recruitment (RIR), allows the employer to establish unavailability of US workers through its own recruitment method prior to filing the application with the SWA.

In both the traditional and RIR filings, the federal Regional office of the Department of Labor (DOL) ultimately reviews the application and has the authority to either grant or deny labor certification.

Prior to an immigration filing deadline of April 30, 2001 under Section 245(i), the SWAs saw a huge surge of labor certification filings resulting in an unprecedented backlog. Until recently, most SWAs across the US were still processing RIR applications filed in April 2001. Cases filed under the traditional method were even further backlogged. Thus, many people have been waiting now for two years or more waiting for an initial review from SWA.

Many SWAs across the country are now reporting that they have crossed the April 2001 barrier and have moved many months ahead. Some SWAs are processing cases that were filed even in 2003. Unfortunately, the SWAs in New York and New Jersey are still processing fast track RIR cases that were filed in April 2001. They have recently reported, however, that some cases for professionals filed in May 2001 are now under review. The New York SWA is processing some traditional cases that were filed in March 2000.

Although RIR cases are moving faster than traditional cases, many employers who have announced layoffs are reluctant to represent to the DOL that there is a lack of availability of US workers. The DOL has also become increasingly reluctant to take at face value an employer's unsuccessful efforts to recruit US workers.

The DOL's new PERM program is expected to be implemented at the end of 2003. This program would allow labor certification applications to be processed and approved within weeks rather than years. Instead of the DOL reviewing or supervising the employer's recruitment, under the PERM program, the employer would have to make attestations that it has conducted a good faith recruitment in accordance with the new regulations. Under PERM, even though the case may be approved in a few weeks, the DOL may still flag such a case for an audit.

Regardless of PERM, a traditionally filed labor certification application filed on or before August 3, 2001, could presently be converted to an RIR. One must be cautioned, though, that the conversion request would not put the case at the front of the queue. It would be treated as if one were filing a new RIR application and would be put in the RIR backlog instead of in the traditional backlog. Thus, if one's traditional case is coming up for review, it would be best to leave it as a traditionally filed application rather than convert it into an RIR. Suppose one has a traditional case filed in September 1999, it will come up for review shortly. If the employer requests that it be converted to an RIR in New York, the SWA will put the case in the RIR backlog, which, at this point of time in New York, is still officially April 2001.

In conclusion, many respondents in removal proceedings will not be able to demonstrate that their labor certification cases are likely to be approved imminently.

GRANDFATHERED PETITIONS

Even if a labor certification or petition was filed before April 30, 2001 pursuant to Section 245(i), that application need not serve as the basis for a non-citizen ultimately adjusting status.

As long as such an application was filed before April 30, 2001, a beneficiary can adjust status based on either a petition submitted and approved after April 30, 2001 or a diversity visa application submitted after that date so long as there was an application or petition filed on or before April 30, 2001 that was "approvable when filed."

The regulations implementing Section 245(i) at 8 CFR Section 245.10 set forth the standards for who can "grandfather" under Section 245(i) of the Act. Either the labor certification or petition must have been "properly filed" and "approvable when filed" before April 30, 2001. 8 CFR Section 245.10(a)(1)(i)(A).

A "properly filed" petition means that the petition was physically received by the INS on or before April 30, 2001, or if mailed, was postmarked on or before that date and accepted for filing. 8 CFR Section 245.10(a)(2)(i). In the case of a labor certification application, one must demonstrate that the application was properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21. 8 CFR Section 245.10(a)(2)(ii).

"Approvable when filed" means that as the date of filing, the petition or labor certification was (1) properly filed; (2) meritorious in fact; and (3) non-frivolous (frivolous being defined as patently without substance). 8 CFR Section 245.10(a)(3). The regulations require the Service to look at the application when it was filed and not whether it was later withdrawn, denied or revoked due to circumstances that have arisen after the time of filing. 8 CFR Section 245.10(i).

Thus, one could have been the beneficiary of a labor certification filing before April 30, 2001. If the non-citizen lost the job and subsequently re-filed the labor certification through a new employer post-April 30, he or she can still potentially claim to have been grandfathered under Section 245(i). Moreover, if one were the beneficiary of a family-based petition filed by a US citizen brother or sister under the family-fourth preference on or before April 30, 2001, it would take more than a decade for the priority date of such a petition to become current and enable this person to adjust status in the United States. If, on the other hand, a labor certification for the same individual was filed on May 1, 2002, and the labor certification gets approved, this approval can serve as the basis for adjusting status. Despite the fact that the labor certification was filed on May 1, 2002, a year after April 30, 2001, the prior family fourth petition filing has "grandfathered" the individual, enabling him or her to adjust status in the US despite the fact that there may have been prior status violations.

Similarly, a child of such a person who was the beneficiary of the family-based fourth preference filing may also be able to grandfather under Section 245(i). As long as this child was below the age of 21 when the family petition was filed prior to April 30, 2001, this child has grandfathered under Section 245(i), and may be able to later adjust status based on a post-April 30 filed petition or labor certification application even though the child may have lost the ability to obtain the immigrant benefit through the parent as a result of crossing the age of 21.

REPRESENTATION BEFORE AN IMMIGRATION JUDGE

An individual placed in removal proceedings receives a document known as a Notice to Appear before an Immigration Judge ("IJ"). The first hearing before an IJ is known as the master calendar hearing. At such a hearing, the IJ inquires whether the non-citizen wants to contest or concede removability. Let us assume the non-citizen cannot contest the charges against removal. The IJ would then inquire whether the non-citizen is eligible for any relief against removal.

One commonly available avenue for relief is being eligible to file an application for adjustment of status under Section 245, including Section 245(i), of the Act. A person who claims eligibility for adjustment of status under Section 245(i) must generally have a labor certification approved before subsequent applications may be filed. Upon the labor certification approval, the employer files an immigrant visa petition under either the second or the third employment-based preferences. Just as in a labor certification filing, the mere filing of an I-140 petition does not grant one the ability to remain in the US and still renders the person amenable for deportation.

Fortunately, a rule was promulgated on July 31, 2002, allowing for an adjustment of status to be filed concurrently with the I-140 petition. 8 CFR Sections 204.5(n) and 245.2(a)(2)(i).

Under the Interim Rule, Form I-485 can be filed simultaneously when Form I-140 is filed under the employment-based first, second and third preferences.

Based on such a concurrent filing, there are benefits of being an applicant for adjustment of status at the time of filing Form I-140, such as obtaining employment authorization. Furthermore, even eligible family members, such as the spouse and minor children, can file Form I-485 applications. However, each applicant would still need to demonstrate eligibility for adjustment of status regardless of whether it is filed concurrently with Form I-140 or not. Thus, a visa number has to be currently available (which is the case presently for all three employment-based preferences) and the applicant must also have maintained lawful nonimmigrant status, unless he or she is protected under Sections 245(i) or 245(k) of the Act.

The preamble to the Interim Rule states that filing a Form I-485 application with the Immigration Court or the Board of Immigration Appeals (BIA) does not stop or stay removal or deportation proceedings. Fed. Reg, July 31, 2002 (Page 49561-49564).

Generally, the filing of an adjustment application in deportation or removal proceedings can act as a defense and could lead to the case's closure. Yet, the preamble indicates that a "concurrently" filed I-485 will only be accepted as a filing and cannot be used to stay proceedings or serve as a vehicle for a motion to reopen or reconsider, unless the I-140 petition is approved. This does not make sense as an adjustment applicant is considered to be in legal status, and one who has filed the Form I-485 concurrently on or after July 31 should not be deported.

It is this writer's opinion that if an I-485 is concurrently filed under the Interim Rule, neither an Immigration Judge nor the BIA would be able to actually issue an order of removal or deportation (while the I-140 remains unadjudicated) even though the preamble suggests that such an application will not be able to stay proceedings. In the context of unadjudicated marriage-based Form I-130 petitions, the BIA recently ruled that a properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted, notwithstanding the pendency of the I-130 petition. See In re Velarde-Pacheco, 23 I&N Dec. 253 (BIA 2002). The same should hold true in the case of an I-485 application concurrently filed with an unadjudicated I-140 petition.

Needless to say, a non-citizen who has the ability to file an adjustment application concurrently with the I-140 petition may move for a continuation. An IJ can grant such a motion for a "reasonable" time if the alien can show "good cause." 8 CFR Sections 1242.13, 1003.29, Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983). The Board of Immigration Appeals has held that where an adjustment of status petition has been filed during the course of removal proceedings and an immigrant visa is still pending, the IJ should grant the continuance so long as the adjustment application is "prima facie approvable." In re Matter of Garcia, 16 I&N Dec. 653, 657 (BIA 1978).

While it is more likely that one who has the ability to file an adjustment application will get a continuance, the individual with only a pending labor certification, which is still no where near approval, must advocate harder for a continuance. In an exchange of correspondence between attorney John M. Levant and Chief Immigration Judge Michael J. Creppy, the Chief Judge noted that it would be inappropriate for him to tell IJ's how to handle cases filed under Section 245(i). He noted that issues such as delays in adjudications of petitions are considerations for the IJ to consider in determining whether a continuance is appropriate, but noted that each matter should be considered on a case by case basis.2

CREATIVE STRATEGIES FOR PEOPLE WITH PENDING LABOR CERTIFICATIONS

(i) Asserting Another Claim For Relief

If an IJ is not inclined to grant a continuation, the attorney must also explore whether there are any other avenues of relief at the master calendar hearing such as cancellation of removal or asylum and withholding of removal. Pursuant to Section 240A(b) of the Act, a person may apply for cancellation of removal. Thus, a person who is eligible for cancellation of removal should assert at the master calendar hearing even if the chances may not be extremely good for winning such relief ultimately. Although a person may be prima facie eligible for cancellation of removal by establishing ten years of continuous residence, good moral character and US citizens children, it must further be established that removal would cause "exceptional and extremely unusual hardship" to such children. It is very difficult to meet this high standard. See e.g. Matter of Monreal, 23 I&N Dec. 56 (BIA 2001)(Need to show more than extreme hardship but need now show that hardship will be unconscionable).

By asserting cancellation of removal, the IJ will schedule the hearing for an individual to decide the merits of the cancellation of removal case. Many IJs have busy dockets and could schedule the hearing a year or more from the date of the master calendar hearing. If one's labor certification gets approved in the meantime, the non-citizen in proceedings would be able to establish relief under both adjustment of status and cancellation of removal. If the cancellation claim is weak, the respondent in proceedings should focus on winning a grant of adjustment of status based on an approved labor certification and immigrant visa petition.

(ii) Substituted Labor Certification

Although a labor certification may still be pending, some employers may have filed several labor certifications and there may be one or more that have been unutilized because the employee left the job. An employer may substitute the original employee with the person who is now in removal proceedings.

Since March 1996, the Department of Labor (DOL) has delegated the responsibility for substituting labor certification beneficiaries to the INS (now BCIS) when the labor certification has been approved. To substitute successfully, the employer must submit: (a) a new Form I-140 for the substituting beneficiary; (b) Part B of ETA-750 signed by the new beneficiary; (c) proof that the new beneficiary met all requirements for position at the time the labor certification was initially filed; (d) the original labor certification, or if previously submitted to the INS, any photocopies of that labor certification; and (e) a written notice of withdrawal if the initial I-140 was filed on behalf of the former employee.3

Note that if the non-citizen has not already been grandfathered based on a petition or application filed before April 30, 2001, he or she cannot claim a grandfathering benefit through substitution on an already approved labor certification that may have been filed for someone else before the deadline of April 30, 2001. 8 CFR Section 245.10(j).

(iii) Re-filing the Labor Certification in Another Jurisdiction

If an employer has several offices in the US, a new labor certification may be filed with the SWA that has quicker processing times. When the employer re-files through another SWA, it must have the intention to ultimately hire the respondent in removal proceedings at the other office when he or she finally receives permanent residency. Note that a labor certification is filed for a prospective job. The respondent can be working with the employer at another location or with a totally different employer during the pendency of the labor certification. In cases where the beneficiary of the labor certification is a "roving" employee, moving from one location to another, the Department of Labor permits the labor certification to be filed with a SWA that has jurisdiction over an employer's headquarters.

While it is important at all times that the employer has a bona fide intention to hire the foreign worker, upon the grant of permanent residency, at the location indicated in the labor certification application, Section 204(j) of the Act allows job portability if the adjustment has been pending for more than 180 days. Pursuant to Section 204(j), the application "shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed."

(iv) Avoiding Labor Certification Altogether

The concurrent filing rule has opened up new possibilities for a non-citizen, particularly in removal proceedings, to directly file the I-140 petition without going through the long and drawn out labor certification process, as well as concurrently filing the application for adjustment of status. This person must still have to demonstrate that he or she was grandfathered under Section 245(i) of the Act.

Take the example of a child who grandfather under Section 245(i) as a result of being the derivative of a beneficiary of a fourth preference family petition (see above). Today, this child is 22 and he had to register under the Call In Special Registration program. He is now in removal proceedings, but is today an accomplished pop singer in the South Asian music industry that is burgeoning in the United States. He has been written about in community newspapers and has a fan following within this genre of music. This individual may try to file an I-140 petition under the "persons of extraordinary ability" category, along with a concurrent adjustment application, and request a continuance from the IJ to wait for the petition to be adjudicated successfully and then adjust in removal proceedings.

Pursuant to Section 203(b)(1)(A) of the Act, an individual can establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. No job offer is required. The legislative history indicates that this category is intended "for the small percentage of individuals who have risen to the very top of their field of endeavor."

Evidence to demonstrate "sustained or international acclaim" could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following, pursuant to 8 CFR Section 204.5(h)(3), is sufficient:

1. Receipt of lesser nationally or internationally recognized prizes or awards.

2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts.

3. Published material about the person in professional or major trade publications or other major media.

4. Participation as a judge of the work of others.

5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.

6. Authorship of scholarly articles in the field.

7. Artistic exhibitions or showcases.

8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.

9. High salary or remuneration in relation to others in the field.

10. Commercial success in the performing arts.

An applicant may also submit comparable evidence if the above standards do not readily apply. Comparable evidence may include expert opinion letters attesting to the applicant's abilities.

Let us take another example of a successful student (who is also grandfathered under 245(i)) in a doctoral program who is conducting extremely important research on Alzheimer's disease. He is working in a research team at his university that has made startling discoveries that could possibly lead to drugs that could prevent the onset of this disease.

Or take another example of a journalist who is in removal proceedings that operates a successful Arabic language newspaper in the United States. Many years ago, in 1996, an employer filed a labor certification on his behalf, which never got pursued, but he still has proof of its filing.

While neither of these two people might be able to prove "extraordinary ability," the time consuming labor certification procedure may again be avoided altogether even under the second preference if the foreign national can establish that the "job offer" requirement should be waived in the national interest. The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest. INA Section 203(b)(2).

In a recent decision of the Administrative Appeals Office of the Immigration and Naturalization Service (In Re New York State Department of Transportation, I&N Dec.3363, Int. Dec. 3363), a three-prong test was established:

1. The person must seek employment in an area of substantial intrinsic merit;

2. The person must demonstrate that the proposed benefit will be national in scope; and

3. The person must further demonstrate persuasively that the national interest would be adversely affected if a labor certification was required for the beneficiary, i.e., that the national benefit offered outweighs the inherent national interest in the labor certification process.

Both the individuals in the above example could possibly attempt to file an I-140 petition under the National Interest Waiver. Before establishing that the applicant is working the national interest, one must also show that the petitioner is a member of the professions holding an advanced degree or equivalent, or in the alternative, exceptional ability in the sciences, arts or business. A bachelor's degree plus five years of progressive experience would be considered equivalent to an advanced degree.

Assuming that both the individuals in our examples meet the threshold requirement of possessing either an advance degree or exception ability,4 they may be able to establish that their work is in the national interest. The researcher working on a cure for Alzheimer's could possibly make such a case. Even the journalist operating the Arabic community newspaper can establish how important it is for the Arabic community in the United States to be bonded through a newspaper, especially in a post September 11th world.

CONCLUSION

If all else fails, the non-citizen could seek voluntary departure in lieu of a removal order. A removal order will bar the non-citizen for ten years. Even if one were to leave the US under a voluntary departure order after proceedings are initiated, not every one would become subject to the three and ten-year bars. A person is only subject to the bars if he or she has overstayed a visa status with an expiration date for more than 180 days. Furthermore, based upon the construction of Section 212(a)(9)(B)(i)(I) of the Act, if a person departs the US after the commencement of proceedings, he or she is not subject to the three year bar. Thus, even if this person remained in the US beyond 180 days, but less than one year, and left after commencement of proceedings pursuant to a grant of voluntary departure, it is still possible to escape the three-year bar.5 Also, if a person has violated a status, which does not have an expiration date, such as a student F-1 visa, one does not face the three or ten-year bars. If such a person could depart the US without facing the three or ten-year bars, he could return as a permanent resident once the labor certification and Form I-140 immigrant visa petition were approved, and after successfully interviewing at an overseas consular post.


1 Another provision is Section 245(k) of the Act, which allows a non-citizen to adjust status under the employment first, second and third preferences who has failed to maintain status for a period not exceeding 180 days.

2 This exchange is reproduced in 76 Interpreter Releases 1521 (October 18, 2001).

3 Memo, Crocetti, Assoc. Comm., Adjudications, HQ 204.25-P (Mar. 7, 1996), reprinted in 73 Interpreter Releases 444-46 (Apr. 8, 1996); Memo, Farmer, Admin. Regional Management, DOL (Mar. 22, 1996), reprinted in 73 Interpreter Releases 447-48 (Apr. 8, 1996).

4Pursuant to 8 CFR Section 204.5(k)(3)(ii), exceptional ability can be established through three of the following: 1) Degree relating to area of exceptional ability; 2) Letter from current or former employer showing at least 10 years of experience; 3) License to practice profession; 4) Commanded a salary demonstrating exceptional ability; 5) Membership in professional association; 6) Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

5 Cable, Department of State, No. 98-State-060539 (April 4, 1998) reprinted in 75 Interpreter Releases 543 (April 20, 1998).


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or info@cyrusmehta.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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