What happens when the laws of America clash with the laws of physics? In the Never-Never Land of Immigration, the natural laws of physics must defer to human-made law. This is the absurd answer of U.S. Citizenship and Immigration Status (USCIS), the Board of Immigration Appeals (BIA) and the Court of Appeals for the Fifth Circuit (CA5) in its Sept. 29 decision, Bokhari v. Holder.
The case involves the interpretation of a USCIS regulation, 8 C.F.R. § 274a.12(b)(20), which came into being because of the problems caused by bureaucratic delay. The regulation allows the automatic grant of work permission for up to 240 days whenever the employer of a foreign citizen (who derives legal status under one of a large number of work visa categories) files a timely application to extend the worker's right to remain in the country. Because it necessarily takes time for USCIS and its predecessor, the Immigration and Naturalization Service (INS), to decide whether to grant the employer's request, 8 C.F.R. § 274a.12(b)(20) allows the preservation of the status quo. As long as the agency takes under 240 days to decide the request to extend the period of authorized stay, the employer may continue employing the worker, and the worker may remain lawfully employed -- and everyone is happy.
Everyone, that is, except USCIS. The agency would have us believe (and the BIA and CA5 agree) that the right to work in this country does not entail the right to be physically present in the United States. Bokhari v. Holder thus holds that any foreign citizen who works after the initial period of authorized stay expires -- while a lawfully and timely filed application to remain longer is pending -- has the right to work in this country but not the right to be here. Thus, any foreign worker so foolish as to trust the regulation -- the CA5 concludes -- may be denied a green card for lawfully working here while displaying the effrontery to be here without "status."
Perhaps USCIS has a special distinction in mind that would harmonize the laws of physics and the agency's own regulation: human levitation. By hovering a few feet above the ground, the law-compliant foreign citizen could work "in" (albeit in the airspace of) the U.S. without being "on" U.S. soil.
Should Bokhari v. Holder ever reach the Supreme Court, it will be fascinating to see USCIS try to persuade the nine Justices that work permission does not include legal status. Surely, agency lawyers would cite the reputed origin of the power to levitate, the "unified field" of quantum mechanics,"the fundamental nonchanging field of life . . . [that] is eternal, unbounded, beyond space and time, wherein are contained all possibilities. . . . the unmanifested field of pure potentiality from where all force and matter fields emerge." In further support for its reading of 8 C.F.R. § 274a.12(b)(20), USCIS could refer the Court to the cases of other noteworthy "levitants" who -- had they been lawfully admitted to the U.S. -- would have been in legal immigration status, such as St. Joseph of Cupertino ("the Flying Friar"), Yogi Millarepa (a 13th Century Tibetan mystic), and more recently, "Yoda" of Star Wars.
Perhaps before Bokhari v. Holder reaches the Supremes, however, careful USCIS "administrative inquiry" -- the euphemism for "investigation" favored by the agency's Fraud Detection and National Security (FDNS) directorate -- might call into question even this elevated form of attempted law obeisance, as this BBC clip suggests.
Or, more plausibly, other federal courts might make a better, more "grounded" decision. They could adopt the reasoning of El Badrawy v. Dept. of Homeland Security. In this federal district court decision, the judge rightly determined that legal immigration status necessarily inheres in the grant of permission to work in the United States.
Still, those who try to reconcile natural physical laws and our artificially constructed immigration laws may wonder how the high-flying decision in Bokhari v. Holder came to rise in prominence. Perhaps a plausible answer lies in the September 27 issue of the Orange County Business Journal, which lists the "Best Places to Work" and cites as number 10 the USCIS "California Service Center" -- with its 1% turnover rate -- an employer offering, among other employee enticements, "onsite gym membership" featuring as one of its offerings the ancient healing art of "yoga." This supposition is surely no less implausible than the strained and ethereal distinction in Bokhari v. Holder between the vaporous grant of work permission and the landed right of physical presence.