ISSUES RIPE FOR RULEMAKING

By Cyrus D. Mehta Esq.

CIS Ombudsman Conference October 18, 2012

AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

Unlawful Presence
Promulgate rules on unlawful presence inadmissibility

under INA 212(a)(b)(B) and based on existing USCIS interpretations. See USCIS May 6, 2009 Interoffice Memo providing guidance on unlawful presence.
Rule on unlawful presence would bind CBP, where some

offices have taken inconsistent position on Canadian overstays not being in D/S and thus not accruing unlawful presence.
Also preclude potential inconsistent interpretations by

EOIR.
AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

Unlawful Presence
Could potentially help to clarify conundrum between

maintenance of status and period of stay authorized by the attorney general (POSABAG). Compare Bokhari v. Holder and El Badrawi v. US.
Could also avoid differences in interpretations by US

consulates, such as minors accruing unlawful presence for purposes of 212(a)(9)(C) bar, or that being paroled in the US does not trigger unlawful presence even if I-485 application has been denied unless parole has been terminated.
AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

Unlawful Presence
At very minimum, the filing of an administrative appeal or

motion to reopen should stop accrual of unlawful presence.

Rule should affirm informal USCIS Chief Counsel Divine

letter, July 14, 2006, holding that time spent for purposes of 3 or 10 year bars can be spent in the US, and not necessarily outside the US.

AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

American Competitiveness in the 21st Century Act (AC 21)

Promulgate rule on AC 21, based on Aytes Memo, 12/27/2005;

HQPRD 70/6.2.8-P.
Clarify ability of spouse in H-1B status to seek AC 21 extension

beyond 6th year by taking advantage of other spouses labor certification.

Clarify validity of labor certification when there is any kind of

administrative or judicial review, such as motion to reopen or appeal.

Clarify AC 21 effective even if LC or I-140 is denied after adjudication

of AC 21 extension.
Or AC 21 eligibility even if sponsoring employer has withdrawn

approved I-140 after employee terminated and seeking H-1B AC 21 extension through new employer.
AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

EB-5
Regulation long overdue under "21st Century Department

of Justice Appropriations Authorization Act, H.R. 2215; PL 107-273.

EB-5s who filed an I-526 between January 1, 1995 and

August 31, 1999 and their I-829 filed before November 2, 2002 are still waiting in limbo as conditional residents.
If no regulation, such EB-5s should be found eligible for

naturalization.

AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

Child Status Protection Act

Issue a regulation overruling Matter of Wang, 25 I&N Dec.

28 (BIA 2009), now that two circuit courts, Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011), and De Osorio v. Mayorkas, __ F.3d __(9th Cir. 2012) have rejected it.
Aged out children who cannot get CSPA protection should

have the former priority date convert to a new F2B petition filed by the LPR parent under INA 203(h)(3).
Such policy consistent with prosecutorial discretion

polices of Obama administration, including deferred action for childhood arrivals (DACA).
AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

Foreign Equivalent Degrees Under EB-2 or EB-3 Need Not Be Single Source Degrees
Foreign equivalent degree determinations have caused

hardship to EB beneficiaries, especially as they are inconsistent with H-1B foreign equivalent degrees, after DOL has approved labor certification based on employers good faith recruitment.
Current definition of foreign equivalent degree under 8

CFR 204.5(k)(2) and 204.5(l)(2) should be modified to broaden definition to parallel H-1B definition of equivalent degree under 8 CFR 214.2(h)(4)(iii)(D).
AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

Cronin Memo Travel by H-1B and L After Filing Adjustment of Status

Rule on Cronin Memo of 3/25/2000 allowing H-1B who

departs under advance parole, and who is paroled into the US to continue to be employed as if under H-1B/L status (w/o EAD) and to be able to seek an extension of H-1B/L status.
Rule would help solidify this creative memo that allows

one on advance parole to continue working without an EAD, and current 8 CFR 245.2(a)(4)(ii)(B) is outdated.
Also clarify whether alien needs to come back to work for

same employer or different employer in H-1B.

AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)

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Rules That Do Not Require Modification

Definition of employer-employee relationship in H-1B

quite clear under 8 CFR 214.2(h)(4)(ii).

Definition of L-1B specialized knowledge under 8 CFR

214.2(l)(1)(ii)(D) reflects intent of IMMACT90.

No need to introduce rule for B-1 in lieu of H-1B; FAM

guidance on B1ILOH1B is detailed and clear, and if there is rule, it should replicate FAM guidance.

AILA InfoNet Doc. No. 12103143. (Posted 10/31/12)