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< Back to current issue of Immigration Daily

Bloggings on IT Immigration

by Rami Fakhoury

THE FIGHT BACK BOOK: Table of Contents

THE FIGHT BACK BOOK:A Litigator’s Guide to APA Suits Against the USCIS and the Department of Labor

By Rami Fakhoury, Mark Levey

Copyright 2010 Fakhoury Law Group/ Rami Fakhoury, And ILW.COM

A Casebook in Business Immigration Appellate and Litigation Strategies

TABLE OF CONTENTS

Introduction:

A.BACKGROUND: Business Immigration - Casciate Ogni Speranza Voi Che Entrate?

  1. About This Book
  2. The Real World Context of Changing Immigration Law
  3. DHS Has Exploited Judicial Review Limitations to Impose Arbitrary and Capricious Rulings
  4. USCIS Reliance Upon Common Law Doctrine Not Owed Judicial Deference
  5. USCIS Rulemaking Not Based In Enabling Statute
  6. Improving Prospects for Successful Litigation of Immigration Cases
  7. Recent Decisions Show Courts Affording Closer Review of USCIS Decisions
  8. Economic Factors and Due Process Concerns Spark Renewed Judicial Intervention
B.THE LEGISLATIVE OPTION
  1. Comprehensive Immigration Reform (CIR) Appears Unlikely to Pass in the 2009-10 Congress, but Restrictive Amendments Still Present a Threat
  2. CIR Compared to Other Legislative Initiatives
  3. The CIR Problem: Proposals for H-1B “Reform” Pose an Existential Threat to Global IT Firms
C. THE LITIGATION OPTION
  1. Why Sue, and on What Basis?
  2. Unlawfully Withheld and Unreasonably Delayed H-1B Petitions Reviewable Under the APA
  3. Jurisdiction Retained for Review of Constitutional Claims or Questions of Law, Standard Overview
  4. Imposition of Novel Substantive or Procedural Standards Forbidden
  5. Agency Rulemaking Without Publication Violates APA
  6. USCIS Coopts Compliance Powers Reserved by Law to USDOL in Order to Carry Out an Impermissible Purpose Venue
  7. Issues Related to Deference and Reasonableness
  8. USCIS Interpretation of Defensor Dicta Not Owed Chevron-level Deference, APA Publish and Comment Requirements
  9. USCIS Neufeld Memo Interpretation of Common Law Doctrine of “Control” Contrary to APA Principles and Other Federal Administrative Interpretation of Common Law
  10. USCIS Disregards Its Own Regulations
  11. Line of APA Cases Bar Similar Legacy INS Practice of Applying Defunct Regulations
  12. Doctrine of “Control” Found In Common Law Not Consistent With APA Standards
  13. No Chevron-style Deference For USCIS “Control” Dicta and Related Doctrine Employed in the Neufeld Memo
  14. USCIS Assumes Investigative and Compliance Powers Reserved by Statute to the Sole Jurisdiction of Another Agency
  15. USCIS Violates Statutory Prohibition Against DHS Initiation of LCA Enforcement – USDOL Barred From Enforcement Action Pursuant to Information Received by USCIS as Part of the I-129 Petition
  16. Legislative History Indicates Congress Intended LCA Enforcement Limited to USDOL “Random” Investigations of H-1B Dependent Employers and Sanctions of “Willful Violators
  17. FDNS-DS Justified by Skewed H-1B Compliance Assessment
  18. Unlawful USCIS Investigations: H-1B and L-1 Data-mining
  19. LCA Enforcement: DOL Changed Its LCA Procedures in Anticipation of Change in Law that Did Not Materialize.
  20. H-1B Fraud Assessment not “Random” Sample: Results Based Upon FDNS-DS Investigative Files of Suspected H-1B Dependent Firms and Willful Violators
  21. DHS Criminalizes Lawful Practices: Temporary Assignment of H-1B Employees to Client Work Sites,Short-Term Placement: A Question of Time, Roving Employee, Long-Term Assignment: A Question of Control
  22. DHS Policy is Discriminatory: Selectively Targets Business Immigration, Particularly Indian and Chinese IT Firms
D.Signs of Change at USCIS, or Worse to Come? Incoming Agency Leadership Signals Some Positive Change in Business Immigration, Worksite Inspection Policies , Hard-Line on Evidentiary Issues to Continue.

CHAPTER I. - H1B

A.OVERVIEW

  1. USCIS Becomes a Wannabe Intelligence and Law Enforcement Agency
  2. H-1B and L-1 Strategies
B. HISTORY

C.LEGAL AUTHORITIES

D.LEGAL ISSUES

USCIS Abandons a Statutory Basis for H-1B Adjudications - The Long, Strange Trip From Defensor, to Neufeld, to Common Law to . . ?

A. BACKGROUND - Defensor Issues and Related Litigation Points: Unlawful RFEs, Delayed Adjudications, Prejudicial Denials

  1. UNLAWFUL RFEs, DELAYED ADJUDICATIONS, PREJUDICIAL DENIALS
  2. DEALING WITH DENIALS
    • Sample Response to RFE or Appeal to AAO (U.S. Employer Requirement)
    • “Specialty Occupation” of the Work Performed at Client Sites – Ongoing Control over Employment
    • Inappropriate Application by DHS of Dicta Read Into Defensor Decision as “De Facto Rule or Binding Norm” in Adjudications of H-1B Petitions
    • Inapplicability of Defensor Case as USCIS Authority to Define “Control” Over H-1B Workers
    • Citation of Defensor v. Meissner is not proper legal grounds for conclusion that petitioner is a “token employer”. The petitioner has met the burden of evidence that it will be the employer, in fact, of the beneficiary.
B. SAMPLE RFE RESPONSE or AAO APPEAL LANGUAGE

  1. The RFE Misinterprets the “U.S. Employer” Requirement (8 CFR 214.2(h)(4)(ii))
  2. “Specialty Occupation” of the Work Performed at Client Sites – Ongoing Control over Employment
  3. RFE Misinterprets the “U.S. Employer” Requirement (8 CFR 214.2(h)(4)(ii))
COMMON LAW ISSUES

  1. Doctrine of Control Found In Common Law Does Not Support USCIS Position Regarding Requirements for Complete Itineraries and Third-Party Contracts
  2. Common Law Does Not Presume Employees Assigned to Third-Party Work Sites Are Not Under the Control of their Employers
  3. Application of Defensor Dicta Contrary to Law and Regulation
CONTRACT LAW

  1. Contract Law Determinative: USCIS Interpretation of Third-Party “Control” of Employment Ignores the Binding Effect of Employment Contract and Privity of Contract
  2. Contracts Presumed to be Valid, Binding, and Exclusive of Control by Third-Party Interests
  3. Employment Contract Has Non-Compete Clause Which Specifically Forbids Beneficiary to Accept Employment by Third-Party Clients
  4. Waiver of Common Law Rights and Duties By Contract
  5. Privity of Contract Is Generally Unaffected by Third-Party Arrangements
  6. “No-Privity” Rule for Subcontractors
  7. Third-Party Intrusion Upon Contract is a Breach of Contract
  8. Employee-Independent Contractor Distinction
  9. Right to Supervise not the Actual Exercise of Control Determines a Valid Employer-Employee Relationship Under Regulations
C. DOCTRINE OF AGENCY

  1. USCIS Assumption of Agency Unfounded: Enforcement of Implied Contract Discouraged
  2. Employee or Independent Contractor - The 10-part Test in the Restatement (Second) of Agency, Section 220
  3. Actual History of H-1B or L-1B Specialty Work Performed Supports Conclusion that Nature of H-1B Employment By the Same Firm Will Continue to be in a Specialty Occupation
  4. Preponderance of the Evidence Supports Approval of the Petition – Mere Fact that Petitioner Places H-1B Workers at Client Sites is No Reason to Doubt Veracity and Accuracy of Petitioner’s Representations.
  5. Reviewing Court Would Owe No Particular Deference to USCIS Definitions or Standard of Evidence Not Based in Published Regulations
D.USCIS TEST FOR “CONTROL” DOES NOT DISTINGUISH EMPLOYEE FROM INDEPENDENT CONTRACTOR: No Single Factor is “Decisive” in Definition; Alternative Multi-Factor Legal Standard Should Apply

E. USCIS STILL LACKS AN ACCURATE, RIGOROUS, AND USABLE DEFINITION OF OPERATIVE TERMS: “Control”, “Employer”, “Employee”, “Independent Contractor”, and “Agent”, and Fails to Distinguish Between Them 1. Defensor does not Apply a Rational Definition of Control – No Meaningful Distinction Drawn Between “Supervision” and “Control” of H-1B Worker

F. IRS DEFINITIONS

  1. IRS Twenty-factor Test
  2. IRS Abbreviated Test of Independent Contractor vs. Employee
  3. IRS Status Reporting Definition
G. TORTS LIABILITY – A Legal Indicator of the Employer-Employee Relationship

H. THE PLAIN-LANGUAGE DEFINITION

I. THE THIRD STEP IN THE ALTERNATIVE ANALYSIS – Employer or Agent?

J. OTHER LEGAL ISSUES RELATED TO DEFENSOR AND NEUFELD

  1. “Speculative Employment” Not Found in Law; Agency’s Reliance on Phantom Regulations and Rejection of Definitive Interpretation on Itineraries
  2. Agency Interpretation Contrary to Congressional Intent
  3. HISTORY OF USCIS POLICY REGARDING “COMPLETE ITINERARY” – Implementation of Defunct Proposed Rules Without Final Publication
  4. VIOLATES APA “LOGICAL OUTGROWTH” RULE: Application of Standards Amounting to Substantive Agency Rules Without Publication of Final Agency Rules Violates APA Requirements.
  5. Evidentiary Requirements Under Neufeld Memo Imposed Without Meeting APA Requirements for Notice and Comment; Violate , Violate Chenery II Principles, and Contrary to Raungswang and Patel Line of Decisions
  6. Adverse Impact of the Application of USCIS Dicta Derived from Discarded Proposed Regulations Regarding Evidence of “Control” and “Complete Itineraries” Requirements
  7. Unreasonable to Require Full Itinerary Six Months Prior to First Possible Start Date
  8. Petition Was Approvable at the Time of Filing Under 8 CFR 103.2(b)(1)
  9. Unfounded Revocations
    • The Regulatory Standard for H-1B Revocation
    • The NOIR Fails to State Substantial Evidence that Support the Grounds for Revocation Cited
    • Reviewing Court Would Show Decision No Particular Deference - Power to Revoke Non-immigrant Visa Petition Not Statutory
    • Notice Not Consistent with OI “Clearly Compelling Circumstances” Standard
    • Spate of Recent Revocations of Immigrant Visa Petitions
    • Developing Issues of Application of Neufeld to LCA Compliance and Revocations
CHAPTER 2. LITIGATION ISSUES

A. APPEALS TO THE AAO AND FEDERAL COURTS

  1. APA Presumption of Reviewability
  2. APA Actions: Prerequisites and Due Process Issues
    • Final Agency Action or de facto Rule or Binding Norm
    • Final Agency Action Must Have Legal Force or Practical Effect
    • Right of Review of Persons Adversely Affected or Aggrieved
    • Continued Judicial Review of Constitutional Claims or Questions of Law After REAL-ID
    • The APA found to extend to H-1B matters
    • v APA Actions Distinct From Due Process and Equal Protection Complaints Under the Fifth and Fourteenth Amendments
  3. The Rational Basis Standard
  4. The Invidious Discrimination Standard
  5. Congressional Intent
  6. Combined Standard
  7. Arbitrary and Capricious Decision-making
B. EVIDENTIARY ISSUES

  1. Importance of Sufficiency of the Administrative Record
  2. Higher Burden of Proof in “Doubtful or Marginal” Cases
  3. The Effect of Minor Discrepancies and Factors Indicating Alleged Credibility Issues Not Raised On the Record
  4. Unreasonable RFEs: USCIS Demands for Contracts with End-User Clients, Other Third-Parties, and Other Unreasonable Agency Evidentiary Demands
  5. Denial Based on Failure to Produce Fully-detailed Itinerary Unreasonable
  6. Unreasonable Demands for Long-term Itinerary Distinguished From Requirement to Document Existence of Initial H-1 Caliber Position
  7. Sample Denial Based on Unsupported Assertion of “in-house project”
  8. Sample AAO Denial Based on Possible Change in Future Job Assignments
  9. Sample AAO denial Based Upon Unmet Demand for Documentation to Establish H-1B Caliber Requirement of the Position Offered
  10. Prima Facie Eligibility versus Clear and Convincing Evidence of Qualifications
  11. Avoid Reliance on Older Agency Policy Memos in Litigation
C. THRESHOLD ISSUES: JURISDICTION, VENUE, STANDING & RIPENESS
  1. Jurisdiction - CDI Information Services: Dealing with the Presumption of Non-reviewability of USCIS Discretionary Determinations
  2. Venue
  3. Ripeness
  4. APA Final Agency Action Requirement- “De Facto Rule or Binding Norm”
  5. Additional Requirementsfor a Federal Injunctions: Showing of Substantial Damages or Imminent Harm
D. LITIGATION ISSUES – Non-Discretionary Grounds of Appeal
  1. Background to Constitutional Claims - The Yick Wo Case (1886)
  2. There is no Discretion to Discriminate: Are Indian Outsourcing Companies being Treated as the Chinese Laundries of the 21st Century?
  3. THE CHENERY II “INFORMED DISCRETION” STANDARD: Rulemaking by Adjudication Valid Only When the Agency Exercises Expert Judgment Applied to Limited Cases.
  4. CHENERY II: Change in Substantial Agency Rules Without Notice and Comment is Restricted to a Case the Administrative Agency “Could Not Reasonably Foresee”
  5. Chevron Deference Standard: No Deference Accorded Unless Agency Action has “Force of Law”
CHAPTER 3. L-1 ISSUES A.OVERVIEW

B. HISTORY

C.LEGAL AUTHORITIES

D.LEGAL ISSUES

E. THE GSTECHNICAL SERVICES CASE

  1. USCIS finds that IBM Subsidiary Is Not a “Real Employer”
  2. The “Puleo Memo” – Is It Binding on Adjudicators?
  3. Excerpt of GST Decision (AAO)
  4. May L-1B Workers Still Be Stationed Outside the Petitioner’s Own Office?
F. L-1B APPEALS ISSUES
  1. Deference Not Owed Ad Hoc Agency Policy
  2. USCIS Interpretive Rules Do Not Carry the “Force of Law”
  3. The Effects of Misinterpretation of the Specialized Knowledge Definition
  4. Other Threshold Issues - Injunctions
  5. Higher Burden of Proof in “Doubtful or Marginal” Cases
  6. Extract of GST Decision - Demand for Third-Party Contracts
  7. USCIS Worksite Enforcement
  8. Deference Normally Given to Agency Interpretation of its Own Regulations
  9. Abuse of Discretion Standards
  10. Litigation Options and Choices
  11. Conclusion
CHAPTER 4. PERM LABOR CERTIFICATION ISSUES

A.OVERVIEW: Background to Fragomen v Chao:

  1. Issues and Related Litigation Points
  2. Sharp Declines in Employment-Based Immigrant Applications
  3. The Longer-term Costs of Restriction of Employment-Based Immigration
B. HISTORY

C.LEGAL AUTHORITIES

D.LEGAL ISSUES

  1. IS THE PERM REGULATORY SCHEMA CONSISTENT WITH STATUTE, CONGRESSIONAL INTENT, AND APA REQUIREMENTS?
  2. STRATEGIES FOR SELF-EMPLOYED ENTREPRENUEURS AND ALTERNATIVES TO LABOR CERTIFICATION
CHAPTER 5. INTERMITTENT AND PART-TIME ALIEN COMMUTER L-1 VISAS

A. Description, p. 2

B. Purpose of the Category, p. 2

C. Limitations, pp. 3-4

D. Detailed Qualifications and Definitions, pp. 4-5

E. Tax and Withholding Issues for L-1 Non-Resident Aliens, pp. 5-6

F. Immigration Consequences of a Change from Intermittent L-1 Employment, p. 7

G. Taxation of U.S. Source Income – the “Commercial Traveler” Exception, pp. 7-11

  1. Applicability to L-1 Visa Holders, pp. 7-9
  2. NOTE: The Start-Up L-1 May Have Sec. 861(a)(3) Coverage as a Commercial Traveler, pp. 9-11
H. Reporting and Withholding Requirements on U.S. Employers, p. 11

I. Tax Withholding for Non-U.S. Workers Authorized for Employment., pp. 11-12

J. Social Security (FICA) Withholdings, pp. 12-13

K. Determining Tax Residence, pp. 13-14

CHAPTER 6. B-1 IN LIEU OF H-1B

CONTENTS:

A. Description, p. 18

B. Purpose of the B-1 Category, Generally, pp. 19-20

C. Purpose of Subcategory: B-1 in Lieu of H-1B, pp. 20-26

  1. B-1 AVAILABLE WHEN OTHER NON-IMMIGRANT VISA POSSIBLE
  2. B-1 VISA HOLDERS – GENERALLY
    • B-1 Consultants
    • B-1 Service Contract Workers
    • B-1 in Lieu of H-1B
D. Operational Issues, pp. 26 – 33
  1. OPERATIONAL ISSUES IDENTIFIED AND RECOMENDATIONS RELATED TO BILLING FOR B-1 WORKERS
  2. Other Operational Issues and Recommendations Regarding B-1 Workers – Billing and Expense Accounting
  3. Assignments of Non-Immigrant Workers - The Use of a Mix of B-1, L-1 and H-1B to Cover “Gaps” in Compliance
  4. B-1, L-1 and H-1B Compliance Issues Identified and Shared Solutions for Compliance Issues
  5. Recommendations Regarding Assignments and Roles Allowed Various Categories of Non-immigrant Workers
E. HISTORY OF INTERPRETATION OF B-1 LIMITATIONS, pp. 33-36

F. B-1 Service Contract Workers: “Specialized Knowledge” Definition and the GSTechnical Services Ruling, pp. 36-39

G. RELATED ISSUE OF CONTROL: Longer-Term Assignments to Client Sites, pp. 39-42

APPENDIX II

Chapter 7. E-3 Visas: Australia-U.S. Free Trade Agreement A. Description

B. Purpose and Similarities with Other Visas

C. E-3 Dual Intent

D. E-3 Application Procedures

  1. Applying for a Visa With a U.S. Embassy or Consulate
  2. Applying for an E-3 Visa from Within the United States
  3. Period of Stay/Extension of Stay
  4. Change of Employment
  5. 5. Dependents of E-3 Visa Holders
E. Visa Reciprocity with Australia

F. Payment of Fees

CHAPTER 8. TN STATUS – “TRADE NORTH AMERICA VISA”

A. Description

B. Purpose and Similarities with Other Visas

C. Sec. 214(b) Issues Bona Fide Nonimmigrant Intent

  1. Bona Fide Nonimmigrant Intent and Temporary Entry
  2. FAM Interpretation: Immediate Visit Must be Temporary, but Future Immigrant Intent Permissible
D. TN Renewal Applications at the USCIS Service Center
  1. TN Processing Times and Fees
  2. Initial TN Application - Documentary Requirements and Fees
E. Problematic TN Categories
  1. Management Consultant – Issues and Solutions
  2. Computer Systems Analysts – Issues Over Degrees
F. Overcoming TN Grounds of Denial

G. Effect of Form I-275, Request to Withdraw Application for Admission

APPENDIX I – NAFTA TN Visa Regulations

APPENDIX II -- NAFTA Handbook

CHAPTER 9. EB-1-3 VISAS: MULTINATIONAL EXECUTIVES AND MANAGERS

A. Description

B. Purpose and Similarities with Other Visas

  1. L-1A Intracompany Transferee
  2. EB-1-1 Extraordinary Ability in Business
  3. O-1 Nonimmigrant “Aliens of Extraordinary Ability
  4. Schedule A, Group II and Second Preference National Interest WaiversINA §203(b)(1)(A)(iii).
C. EB-1-3 Eligibility Requirements and Definitions
  1. Basic Requirements: Certain Multinational Executives and Managers
  2. Qualifying Multinational Relationship
  3. Managerial or Executive Capacity
D. Functional Managers

APPENDIX I – Adjudicator’s Field Manual, 22.2 Employment-based Petitions (Forms I-140)


About The Author

Rami D. Fakhoury is a managing partner of the AV-rated Fakhoury Law Group PC, representing some of the largest global users of US employment-based visas. His practice focuses on business-based employment immigration, with a concentration in the information technology and engineering sectors; among his clientele are health-care workers, investors, academics, and individuals of extraordinary and exceptional ability. In this era of strict enforcement, Mr Fakhoury provides a fully coordinated, expert approach to compliance risk assessments and risk management with a concentration on comprehensive compliance and audit procedures. He and his firm have successfully handled the most difficult legal challenges that confront H, L, E, and O visas and other business immigration employers, including relocation, international taxation and related compliance issues. Mr Fakhoury has distinguished himself as a pioneering innovator throughout his career. He has been counsel for clients at US consulates abroad and is an international lecturer and fellow for the Center for International Legal Studies (CILS); a moderator and leader of the ILW on immigration and consular processing; a policy and compliance liaison for Techserve Alliance on US immigration laws; and a member of the immigration section of the International Bar Association. Mr Fakhoury has also presented and written authoritative articles on immigration issues; the International Law Office's business immigration newsletters; and for an upcoming book entitled Beyond Basics - Dealing with Complicated Business Immigration Issues. This immigration practitioner, cited in the Who's Who Among American Lawyers, International Who's Who in Corporate Immigration Law and and whose firm was chosen as the Global Immigration Firm of the year, is a member of the State Bar of Michigan (international law section); TechAmerica's immigration law committee; the American Immigration Lawyers Association; the International Business Association's immigration law committee. He is a fellow of the Center of International Legal Studies in Salzburg, Austria, a member of the Order of St Ignatius and a global charter member of TiE Global. He is also the Editor of ILW.COM's The Consular Posts Book. To learn more, see: http://www.ilw.com/books/ConsularPosts.shtm.


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


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