USCIS Adopted Decisions: Latest USCIS Efforts To Establish Uniform Policy
Generally, of the many decisions rendered by the Board of Immigration Appeals (BIA) and the Administrative Appeals Office (AAO), only small proportions are designated as precedent decisions. The BIA itself makes the decision of which case to designate as precedent, while decisions by the AAO become binding upon the U.S. Citizenship and Immigration Services (USCIS) upon the Commissioner’s designation. Once chosen as precedent, these decisions become binding on all officers and employees of the USCIS pursuant to 8 C.F.R. §103.3(c).
The ratio of binding to non-binding AAO decisions has commonly been small. Practitioners have long endured the frustration of not being able to use favorable AAO decisions to support subsequent petitions because of the non-binding status of such decisions. Even the AAO has consistently refused to follow its own non-precedent decisions.
This issue has been brought up at various American Immigration Lawyers Association (AILA) meetings with liaison, at the local chapters, and most recently at the AILA national conference in Salt Lake City, Utah in June 2005. Fortunately, Robert Divine, USCIS Acting Deputy Director, informed the membership during the initial plenary sessions that he would soon step in and designate certain AAO decisions as binding on the entire agency. He believed that taking this step, instead of waiting for the AAO (as a representative of the Commissioner) to do so, would create a more standardized national policy for the Service to follow. On October 27, 2005, Mr. Divine announced that two recent AAO decisions were now “adopted as binding” upon the USCIS.
All future binding decisions will be posted on the USCIS website (www.uscis.gov). This article will address each published case and discuss its effect on the Service’s national policy.
Recapture of H-1B Time Spent Outside the U.S.
Among the issues that have resurfaced in the last few years has been whether time spent outside the U.S. while on H-1B status can be recovered at the point of the last H-1B extension, before the maximum six-year limitation. In the years prior to the emergence of the American Competitiveness in the 21st Century Act (AC21), Pub. Law 106-313, it became crucial for petitioners to recapture valid H-1B time for their professional workers who had been outside the U.S. for any period of time so as to maximize the inherent 6-year limitation of the H-1B visa. Even individuals, who had spent time on L visa, were also counted for purposes of changing to H-1B, and vise versa.
Because of the backlogs at both USCIS and the various departments of labor, AC21 allows petitioners to extend their professional workers’ visas, beyond the H-1B six-year limitation, in one year increments past the sixth year until legal permanent resident status is granted. This rule hinges upon a pending or approved labor certification application or employment-based petition for a minimum of 365 days.
The advent of PERM (the new fast track labor certification system) earlier this year caused some members of the immigration bar to argue that the ability to exercise the AC21 7th year H-1B extensions might be jeopardized. The argument says that because PERM cases are approved rather quickly, and if the H-1B worker needs the 7th year extension, the filing of the PERM case would not qualify the worker for the new extension because PERM cases could not remain pending for 365 days (adjudications remain consistent at 45-60 days in general). The writers believe the spirit of AC21 is expansive enough so as to contemplate continued coverage. But we digress.
Notably, independent of the 7th year provision, §104(c) of AC21 permits a one-time three year H-1B extension for those who are a beneficiary of an approved employment-based petition (EB1, EB2, and EB3) where an adjustment of status cannot be filed because of lack of visa availability. The 365 day rule does not apply in this scenario. Notwithstanding, the concept of recapture will continue to play an important role in a time of immigrant visa retrogressions.
Among the best strategies available is the ability to recapture time spent outside the U.S. and, pursuant to a recent Yates memo, also request the 7th year. Time spent outside the U.S. could, in some cases, be sufficient to push the applicant into the 365 day mark for 7th year extension purposes. The concept of recapture thus becomes a critical element in the strategic planning of a professional worker’s immigration trajectory. The pertinent regulation, at 8 CFR §214.2(h)(13)(iii) states:
An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15) (H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year. [Emphasis added].
The clear language of the regulation suggests that any time spent outside the U.S. should qualify for recapture. However, USCIS and its legacy agency (INS) carved out a rule that said only time spent outside the U.S. which was “meaningfully interruptive” could be recaptured. Vacations, even short-trips to contiguous countries, were deemed ineligible for recapture.
In other cases, USCIS issued Requests for Evidence (RFEs) requiring proof of a qualifying exemption by clear and convincing evidence. 8 C.F.R. §214.2(h)(13)(V). This section states:
The limitations in paragraph (h)(13)(iii) through (h)(13)(iv) of this section shall not apply to H-1B, H-2B, and H-3 aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitations shall not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.
The obvious problem with this regulation is that most H-1B petitions are not seasonal or intermittent. A majority of L visas are neither seasonal nor intermittent. Both these USCIS positions are inconsistent with the spirit of the law.
To further strengthen the need for uniform policy on this issue, two non-precedent AAO decisions from December 2004 and August 2005 addressed the recapture controversy for the first time and held that any time spent outside the U.S. could indeed be recaptured.
In Matter of X, LIN 03 180 5171, NSC (AAO Dec. 11, 2004), the AAO overturned an adverse determination by the Nebraska Service Center (NSC) where the NSC director had denied the nonimmigrant petition on the grounds that the beneficiary had been in H-1B status from October 25, 1997 to October 27, 2003 - the maximum period of six years permitted by federal regulations. The director reasoned that time outside the United States which would be considered part of the normal work period, such as weekends and vacations, could not be considered interruptive of employment and therefore could not be reclaimed for purposes of extending the six-year limit on H classification.
The AAO, however, disagreed. It reasoned that the language of the 8 C.F.R. §214.2(h)(13)(iii) (“An H-1B alien . . . who has spent six years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension”) plainly states that the six-year period accrues only after admission into the United States. Referencing Nair v. Coultice, 162 F.Supp.2d 1209 (S.D. Cal. 2001), the AAO reversed the NSC’s decision and approved the extension of the beneficiary’s H-1B status for the total number of days that it proved the beneficiary was outside the United States.
In light of the new decision, the issue was raised again at the June 2005 AILA New York Chapter Monthly Meeting, where Keith Canney, Adjudications Manager for the Vermont Service Center (VSC) indicated that the Service Center did not agree with the recent AAO decision. He confirmed that the VSC would still adhere to the “meaningful interruptive” standard still applied until directed otherwise by headquarters. Nevertheless, the VSC randomly approved recapture cases under the AAO reasoning. Other service centers also showed disparate adjudications on this issue.
In August 2005, another non-precedent decision on recapture was issued by the AAO based on a case from the Texas Service Center (TSC). In Matter of X, SRC 03 218 50864, TSC (AAO Aug. 22, 2005), the TSC director similarly denied a petition to recapture H-1B time spent outside the U.S. during the validity period on the basis that such time was not “meaningfully interruptive.”
Once again, the AAO overturned the service center director, citing Nair v. Coultice, 162 F.Supp.2d 1209 (S.D. Cal. 2001). It cited section 214(g)(4) of the Immigration and Nationality Act (INA) which states, “In the case of a nonimmigrant described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant may not exceed 6 years.” Section 101(a)(13)(A) of the Act also states, “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien in the United States after inspection and authorization by an immigrant officer.” The AAO reasoned that the beneficiary was not in any nonimmigrant status when outside the United States and renewed his H-1B status with each readmission to the country. Relying on the plain language of the law, the AAO approved an extension of the beneficiary’s H-1B status for the total number of days spent outside the country. These two decisions laid the groundwork for the most recent ruling in this line of cases.
New USCIS Adopted Policy on RecaptureIn policy guidance dated October 21, 2005, Acting Associate Director for Domestic Operations Michael Aytes clarified procedures for calculating maximum period of stay regarding the limitations on admission for H-1b and L-1 nonimmigrants. This memo codified Acting Deputy Director Robert Divine's earlier October 18, 2005 policy guidance on Matter of IT Ascent, EAC 04 047 53189, VSC (AAO Sept 2, 2005), as a USCIS Adopted Decision, binding policy guidance on all USCIS personnel.
The move suggests a direct reversal of the VSC’s vocal position through a case that emerged in its own service center; or, perhaps because the AAO and the federal district court had issued consistent decisions it was time for uniform policy to be made official.
The facts of this case, as well as the previous cases from the NSC and TSC are quite similar. The latter two involved various short periods of stay outside the U.S., while the VSC case, as detailed below, only involved a one-time absence of thirty days. The VSC director denied an H-1B extension to recapture thirty days the beneficiary had spent outside the United States on a work assignment. The beneficiary had already received a six-year maximum validity period of H-1B classification. The director determined that this work-related detail was not “interruptive” of employment in the United States.
Following its decisions in the NSC and TSC cases discussed above, the AAO reaffirmed the principle that the plain language of the relevant statutory and regulatory provisions as well as the federal district court decision in Nair v. Coultice, 162 F.Supp.2d 1209 (S.D. Cal. 2001), the time beneficiary spent in the United States after lawful admission in H-1B status is the time that counts toward the maximum six-year period of authorized stay. The AAO reasoned that the beneficiary interrupted his period of H-1B status upon departure from the United States and resumed his status each time he was readmitted to the United States.
The AAO also discussed what kind of documentary evidence was sufficient to prove the beneficiary’s departures to and from the United States. Copies of passport stamps or I-94 arrival-departure records, without an accompanying statement or chart of dates spent outside the United States could be insufficient. Likewise, a statement or chart of dates spent outside the country must be accompanied by consistent, clear and corroborating proof to meet the petitioner’s burden in accordance with Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In the instant case, the beneficiary’s passport stamps indicating arrival at O.C.S.I. Airport in Mumbai, India after departing the United States, and reentry to the United States were rendered sufficient evidence and the beneficiary was granted an additional thirty days in H-1B classification.
In adopting the VSC case as binding, Acting Director of USCIS went further and stated that the “period of authorized admission” must also apply to the L-1 visa classification and the calculation of such period must be analyzed in the same way as an H-1B period is computed. Similarly, derivatives of H-1Bs and L-1s must be accorded the same recapture period as the respective principal.
This new policy has finally settled an uneven USCIS practice, if not a hostile one, dealing with the recapture of H and L periods spent outside the U.S. The new adopted decision establishes a fair standard and a level playing field so that practitioners can properly strategize the timing of the filing of the new PERM cases and the recapture of H-1B time so that 7th year extensions can be obtained.
Permanent Portability under AC21
Ac21 was signed into law on October 17, 2000, former President Clinton. In addition to establishing new benefits for non-immigrants in H-1B classification, the new law permitted applicants undergoing lengthy adjustment adjudications (Form I-485) to change employers.
Section 106(c) of AC21 amended Section 204 of the INA as follows:
(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petitioner under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more 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. (Emphasis added)
Initial guidance for exercising §106(c) permanent portability cases was provided in a memorandum by Michael D. Cronin, Executive Associate Commissioner on June 19, 2001. In this memorandum, legacy INS (now USCIS) stated its expectation that the applicant submit a letter notifying USCIS of his or her changed intent to no longer enter employment with the employer who sponsored the I-140 petition. Such letter from the new employer should verify the new job title, job description, and salary in order for USCIS to assess whether it qualifies as a “same or similar occupational classification.”
This past summer William R. Yates, Associate Director for Operations of USCIS provided long-awaited clarification in a memorandum issued on May 12, 2005, which addressed issues that had arisen since the previous guidance memorandum in 2001. USCIS particularly acknowledged how the implementation of provisions of AC21 have been further complicated by the interim rule published on July 31, 2002, allowing in certain circumstances the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485.
In this memorandum, Yates acknowledged that an applicant could exercise 106(c) portability even if an unapproved I-140 petition and I-485 application had been pending for 180 days or more. USCIS service centers or district officers were advised to examine the pending I-140 petition to see if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If so, they were instructed to approve the petition on the merits and adjudicate the adjustment of status application to determine if the new position is “the same or similar occupational classification.”
However, the memo still leaned toward an approved I-140 petition as the main vehicle for permanent portability upon the pendency of the adjustment of status application for more than 180 days. The “approvable” standard of the Yates memo seemed to suggest that USCIS would have to conduct a preliminary adjudication of the petition to determine if portability could be exercised. But neither the USCIS nor the AAO had decided the meaning of the world “valid” in the context of permanent portability.
The New Adopted Decision on Portability
The second AAO case adopted as binding by USCIS is Matter of X [citation omitted], which the AAO decided on January 12, 2005, and dealt with permanent portability under AC21.
The employer in this case filed Form I-140 for the beneficiary and was denied. Motions followed without success. A new filing was made concurrently with Form I-485. Both I-140 and I-485 remained pending for more than 180 days. Subsequently, the beneficiary ported to a new job in the same or similar classification. After having ported, the I-140 was denied, as was the I-485 and ancillary applications. Counsel argued on appeal that once the 180 day mark had passed, portability could not be denied.
At issue in this case became the definition of the term “valid” found in §106(c) of AC21 (which became Section 204(j) of the Immigration and Nationality Act). The AAO reasoned that at the time AC21 was passed, the procedure for filing an adjustment of status hinged on an approved I-140. The enactment of the statute occurred at a time prior to the implementation of the concurrent filing rule, which was a response to the growing backlogs at the service centers. The AAO said that concurrent filing was established as a convenience to employers and beneficiaries, not as an administrative right to claim portability through denied or unadjudicated I-140s. Thus, because of the existing procedures at the time of AC21 passage, the AAO held that in order for permanent portability to be effective, the underlying Form I-140 must be approved.
The AAO equates the term “valid” to mean “approved.” Therefore, even if a concurrent filing took place and the requisite 180 days of the unadjudicated filing passed, permanent portability will not stand if the beneficiary ported and the I-140 is subsequently denied past the 180 days. To do otherwise, the AAO said, would be to encourage frivolous applications by ineligible aliens and thus “severely undermine the immigration laws of the United States.”
The new decision is consistent with the Yates memo on permanent portability, though it goes further to establish once and for all that an approved I-140 is the basis for any portability.
The Next Adopted Decisions or Memos?
The complex and open questions which the permanent portability provisions of AC21 have generated are now reaching judicial scrutiny. The adopted decisions have settled two important issues. However, a new published decision from the BIA released on October 28, 2005 has brought another matter that might spark further litigation or procedural pronouncements by the USCIS.
In re Minor Humberto Perez-Vargas, 23 I & N Dec. 829 (BIA 2005), the BIA dealt with the issue of whether immigration judges have jurisdiction to determine whether the validity of an alien’s approved employment-based petition is preserved under INA §204(j), the permanent portability provision of AC21. In Perez-Vargas, the respondent had overstayed his non-immigrant visa. He had an approved I-140 petition, but was no longer employed by the original employer. The respondent had ported to a new employer. While in removal proceedings, the immigration judge refused to consider whether the new job was of the “same or similar” classification and denied the adjustment of status.
On appeal, the BIA followed its decision in Matter of Aurelio, 19 I & N Dec. 458, 460 (BIA 1987) and held that immigration judges do not have jurisdiction to decide visa petitions. The BIA reasoned that the Department of Homeland Security (DHS) was in a better position to use its expertise in evaluating the truth of the assertions made on visa petitions. To do otherwise would “constitute a substantial and unwarranted intrusion into the district director’s authority over the adjudication of visa petitions.” Matter of Arthur, 20 I & N Dec. 475, 479 (BIA 1992).
The problem with the BIA’s decision is more procedural than substantive. As the BIA’s decision acknowledges, INA §204(j) was intended to promote the free movement of workers by giving them job flexibility while applying for adjustment of status and an employment-based petition. This flexibility obviated the need for re-certification of the job classification by the U.S. Department of Labor (DOL). But, in refusing to permit immigration judges from using common sense in determining if a position is the same or similar, the BIA is in essence promoting the re-certification of the position not by the DOL but by the DHS.
The decision does not suggest what procedure immigration judges must follow if they are presented with a portability issue in removal proceedings. Must the case be remanded to the DHS/CIS for a determination? Would that task belong to the Trial Attorney and the Immigration and Custom Enforcement (ICE) as intermediary? Or would the immigration judge remand it to the appropriate service center for a decision? It is hoped that a new backlog does not result from any new procedure to resolve this issue.
The BIA said that “although domestic economic policy may be related to issues involving immigration, it is not within the immigration judges’ realm of expertise to make determinations regarding such matters.” Why can’t the judges be trained? Once the DHS has made the determination (approving I-140) that the job qualifies under the relevant employment-based classification, the judges could compare the original job duties with the new position and admit relevant evidence (through testimony and/or documentation) that could allow him or her to make a decision on the issue. New policy guidance should be issued in light of Perez-Vargas.
In sum, the new “adopted decision” policy is a welcomed effort to ensure uniformity in adjudication. It is hoped that in making such determinations the USCIS selects fair decisions, and provide the proper field guidance where necessary, which will enhance the Service’s efficiency, quality of adjudication, while following the spirit of the immigration laws.
Rómulo E. Guevara is a senior attorney with Neil A. Weinrib & Associates in New York City, where he practices business immigration law. He is a member of the AILA New York Chapter DOL Liaison Committee, and the Young Lawyers Division National Steering Committee. Rómulo’s practice advisory articles analyzing the latest developments in immigration law have appeared in a wide variety of immigration law journals. He has also lectured at conferences and teleconferences for AILA and ILW.com, and has served as Associate Editor on recent AILA publications. Rómulo graduated from Hofstra University School of Law in 1996 and has been practicing immigration law since 1997. He is originally from El Salvador.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.