AILA Comment on INS 245(i) Regulations

May 25, 2001
Director, Policy Directives and Instructions Branch
Immigration and Naturalization Service
425 I St. NW, Room 4034
Washington, DC 20536

Charles Adkins-Blanch, General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2400
Falls Church, VA 22041

Re: INS number 2078-00; Adjustment of Status to that of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility

Dear Sirs/Madam:
The American Immigration Lawyers Association (AILA) is a voluntary bar association of approximately 7,000 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA's mission includes the advancement of the law pertaining to immigration and naturalization, the promotion of reforms and the facilitation of justice in the field. AILA's members are well acquainted with all elements affecting the operation of section 245(i), including the labor certification, immigrant petitioning, and adjustment of status processes, and thus are uniquely positioned to comment on the interplay of those processes. 

These regulations represent some strides forward in key elements of the implementation of the section 245(i) legislation. However, as discussed below, the regulation interjects standards that are inconsistent with the statute, and requires some revision and further refinement.

Clarification is Needed Regarding Grandfathering of Dependent Family Members

INS is to be applauded for codifying its long-standing and appropriate "alien-based" reading of section 245(i), including the grandfathering of dependent spouses and children by a qualifying filing made on behalf of the principal beneficiary. However, the regulatory language needs to be slightly amended to make clear that the dependent spouse or child does not need to adjust status with the principal. Previous INS interpretations have acknowledged that if, for example, a child subsequently turns 21 or a spouse is subsequently divorced or widowed, that spouse or child would not lose the benefit of section 245(i). This correct interpretation is best stated in the Memorandum from Robert L. Bach dated June 10, 1999 (HQ 70/23.1-P, HQ 70/8-P), with respect to the earlier, January 14, 1998 deadline: "The spouse or child of a grandfathered alien…is also grandfathered for 245(i) purposes. This means that the spouse or child is also grandfathered irrespective of whether the spouse or child adjusts with the principal. The…spouse or child also are (sic.) grandfathered even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age."
AILA suggests that this language from the Bach memorandum be added to the regulation to ensure clarity.

In addition, spouses and children are eligible to adjust under section 245(i) even if the individual was not a spouse or child as of January 14, 1998 or April 30, 2001. This correct interpretation also was confirmed in the above-referenced Bach memorandum, and should be incorporated in the regulation: "Many aliens with pending, grandfathered petitions or labor certification applications will marry or have children after the qualifying petition or application was filed but before adjustment of status. These 'after-acquired' children and spouses are allowed to adjust under 245(i) as long as they acquire the status of a spouse or child before the principal alien ultimately adjusts status."
Acceptance of Skeletal Filings Is Appropriate
AILA applauds INS' indication in the interim regulation that it will accept visa petitions as properly filed if they contain the minimum information required by 8 C.F.R. section 103.2(a). This is consistent with guidance provided both by key sponsors of the legislation and by the President who signed the legislation. However, the regulation should be further clarified to indicate that, where an immigrant petition is being filed concurrently with an adjustment of status application, the adjustment application also is properly filed if it meets the criteria of section 103.2(a). Otherwise, the efficiency of the concurrent filing process will be lost, and the Service will ultimately have to separately handle the two filings, adding to its already overwhelming backlogs.

The Postmark Rule Is a Much-Welcomed Acceptance of the Realities Involved.

INS is to be heartily congratulated for its use of the postmarked date as the date of filing for 245(i) purposes. At the last section 245(i) deadline, considerable confusion was created in the field by conflicting information and understandings of what constituted the date filed. A postmark standard resolves most of these problems.

We are concerned, however, about certain aspects of the guidance letter that followed publication of the regulation with respect to the meaning of "postmarked." AILA applauds INS for considering in advance the problem of omitted or illegible postmarks. However, the solution put forth is not workable. The Service Centers are often referred to as "remote adjudication centers." For some of the Service Centers, that description has an additional truth: their locations are well removed from major postal hubs. As a result, it is not unusual for mail-particularly the large-sized envelopes in which these filings are usually contained-to take one to two weeks to reach some Service Centers by regular mail. Members of the public, lulled into a false sense of security by the language of the regulation, may well have mailed a petition on April 30, but it will not have reached the Service Center until mid-May. Because of the three-day standard put forth in the guidance letter, those filings would not be considered to have been sent by April 30 even if they actually were mailed by that date. Thus, AILA urges that the 3 days be changed to 15 days where the application was sent by regular mail.

An additional problem with the guidance is how the Service Centers actually operate in getting their mail. As we have learned from other deadlines, a piece of mail may arrive at a Service Center's post office box on a particular day, but not be acknowledged as having come into the hands of the Service until a few days later. It is bad enough when this difference, which is completely out of the hands of the filer, means payment of a higher fee or a longer processing time. In the 245(i) context, it makes a profound difference in the person's eligibility for a life-altering benefit. Therefore, it is imperative that fail-safe systems be put into place to ensure that the Service Centers know when they have received a package through the P.O. box, or through delivery to the Center's physical location.

Similarly, we are concerned about the application of the three-day rule to items filed by private delivery services. Because of the historic problems with Service Centers knowing that they actually have received a given package by a given date, the postmark rule should be applied in the context of private delivery services: in other words, the date that the service picked up or received the package should govern.

"Approvable When Filed" Is an Inappropriate Standard.

Section 245.10(a)(1)(i) of the interim regulation creates two standards for determining petitions or applications that are considered "filed" for grandfathering purposes. The first standard is that the petition or application must have been "properly filed." The second standard is that the petition or application must have been "approvable when filed." The latter standard -- "approvable when filed" -- is contrary to the language of 8 U.S.C. §245(i), inconsistent with INS' own regulations and bad policy. 

An "approvable when filed" standard is outside the scope of the statute, and does not represent a reasonable construction of the statutory language. In fact, it violates all tenets of statutory construction for the following reasons:

· INA section 245(i)(1)(B) defines the class of grandfathered aliens as being all aliens who are "beneficiaries" of petitions "filed" on or before the deadline date. There is no reasonable or logical reading of this language that will allow an interpretation that an alien who is the beneficiary of a petition "filed" is only grandfathered if the petition is approved. Even if the petition is denied, the alien is still the "beneficiary" of the filed petition. Congress expressly gave grandfathering benefits based on "filing" of petitions, not on "approval" of petitions. The INS' self-invented standard in effect substitutes the word "approved" for the word "filed" and reads in the requirement of an "approved petition" rather than just a "petition filed."

· When Congress has wanted to limit benefits so as not to include all filed applications, it has done so expressly. For example, in INA section 212(a)(9)(B)(iii)(II), Congress limited the tolling of unlawful presence only for asylum applications that were "bona fide." The INS interpreted the requirement that the asylum application be "bona fide" as meaning that the application must have an arguable basis in law or fact. It is a well-recognized tenet of statutory construction that, if Congress uses a word or phrase in one section of the statute and specifically excludes it in another section, it should not be read into the other section of the statute. In this instance, Congress did not even limit the grandfathering benefits to "bona fide" employment-based immigrant petitions. Nevertheless, the INS sua sponte has added a requirement that not only exceeds the statutory mandate, but is far more exacting than even the "bona fide" requirement. The interim rule requires that the petition be "approvable," which is further defined as "meritorious in fact." 

· The Congressional language clearly created a class of aliens who were eligible for the benefits of grandfathering under §245(i) without the need to await future developments to determine who would be grandfathered. The INS interim rule is utterly contrary to this statutory construct. For example, the INS approach could result in an alien being grandfathered as of April 30, 2001 (based on the petition being "approvable") but losing grandfathered status subsequently (based on the petition being denied). In the same way, an alien could be grandfathered at the time of filing for adjustment, but lose grandfathered status before the adjustment application is adjudicated. Furthermore, since the INS' interpretation is that a petition denied on the merits renders the alien not grandfathered, the alien's grandfathered status remains uncertain during the course of any appeal of the denied petition. Congress clearly did not intend that the grandfathered status of an alien would be dependent upon the results of an appeal of a petition filed before April 30, 2001 (which appeal could take an excessively long period of time to adjudicate) when the alien is filing for adjustment of status based upon a totally different petition or application. Parenthetically, this interpretation by the INS forces aliens to file appeals of denied petitions solely for the purpose of protecting grandfathering benefits even though the alien plans to adjust based upon a different petition or application.

· INS has conceded that Congress intended to grandfather aliens and not petitions. This is what the INS calls its "alien-based reading" of the statute. Nevertheless, the INS has in effect read out of the statute a large class of aliens. As a practical matter, the only aliens who need to avail themselves of the "alien-based reading" are those aliens who will be adjusting based on petitions or applications other than the pre-April 30, 2001 petition or application. The most frequent reason that these people would be adjusting based upon a different petition or application is that the previous petition was denied. This entire class of aliens - whom the INS had previously indicated publicly were grandfathered - are now being effectively read out of the statute. 

This section of the interim rule presumes that there is no INS regulation that defines when a petition is "filed." However, such a presumption is incorrect. 8 C.F.R. §204.1(c) states: "The filing date of a petition shall be the date it is properly filed. . . ." 8 C.F.R. §204.1(d) defines "proper filing" for a family-sponsored petition, and 8 C.F.R. §204.5(a) defines when a petition is properly filed for purposes of employment-based immigrant petitions. Specifically, an employment-based immigrant petition is considered properly filed if it is accepted for processing, if it is accompanied by any required individual labor certification, and if it includes any required supporting documentation. 

Congress expressly stated that an alien is grandfathered when a petition is "filed." Since the INS has already defined the term "filed," it is inappropriate for the INS to fail to follow its own regulation and to create a new definition of "filed" in interpreting which aliens were grandfathered by Congress. Furthermore, it is a proper tenet of statutory construction to assume that Congress was aware of the INS regulation defining when a petition is "filed" when it passed Section 245(i).
In addition, Congressional intent and public policy are furthered by ensuring a class of aliens that are grandfathered as of April 30, 2001. There is no policy reason and no basis in statutory construction that makes the status of the pre-April 30 petition relevant if the alien is adjusting based on another application or petition.

The INS change in interpretation leads to a result that Congress could not possibly have intended. For example, many foreign nationals filed national interest waiver petitions prior to January 14, 1998. Many of these petitioners relied on the national interest law as it existed pre-NYSDOT. Although a great number of the post-NYSDOT national interest waiver cases have been denied on the merits, many of these applications were in fact approvable at the time they were filed (pre-NYSDOT). In fact, many applications based upon the same set of facts (such as doctors in health professional shortage areas) that were actually approved pre-NYSDOT were denied post-NYSDOT. 

The adjudication of immigrant petitions often involves judgment calls by examiners. Reasonable examiners might disagree on whether or not a particular application was approvable when filed. Indeed, we have seen a recent proliferation of petitions being denied in all the employment-based categories when other petitions on identical facts are approved. Clearly, approvability of employment-based petitions is not an exact science. To deny the beneficiaries of non-frivolous employment based petitions grandfathered status simply because their petitions were actually denied would not further Congressional intent or public policy.

Grandfathering aliens based upon the filing of a petition or application before April 30, 2001 creates a clear standard and a clear burden of proof. That is undoubtedly the reason that this standard was used in the statute. The INS should presume that an employment-based petition that is denied on the merits grants grandfathered status unless there exists some strong indicication that the application was fraudulent or meritless.

Public policy and statutory construction mandate a "non-frivolous" standard: The only public policy for revoking grandfathered status based upon the denial of a pre-April 30 petition is that an alien may have obtained a benefit or sought to obtain a benefit through the filing of a frivolous application. Congress has consistently created standards of "bona fide" in statutes where Congress deems that to be a relevant consideration. In drafting §245(i), Congress created no such standard. It would be reasonable for the INS to read in a "non-frivolous" standard, a standard that does not promote fraud. Nevertheless, aliens who filed truly "bona fide" petitions that have been denied on the merits due to inability of the beneficiaries to obtain documentary evidence, changes in the law or INS' interpretation of the law, or subjective judgments of the examiners, should not lose grandfathered status. The standard set forth by INS in an earlier Memorandum accomplishes this desired result: "Cases that are deficient because they were submitted without fee, or because they are fraudulent or without any basis in law or fact, should be denied and should not be considered to have grandfathered the alien." (Memorandum from Robert L. Bach, dated April 14, 1999).

The "Circumstances Arising After Filing" Standard Needs Clarification.

In the event that the final rule maintains an "approvable when filed" standard, we wish to comment on the "circumstances that have arisen after the time of filing" standard in §245.10(a)(3) and (4). The definition of "circumstances that have arisen after the time of filing" should clarify that a change in INS policy or law that arises after the time of filing is included in the type of changed circumstances that will preserve the alien's grandfathered status. For example, as referenced above, the seminal national interest waiver precedent decision was issued after January 14, 1998. The result of this precedent decision was that many national interest waiver petitions filed before January 14, 1998 were approvable, and in fact would have been approved, prior to the publication of NYSDOT. However, many of these petitions were denied utilizing the NYSDOT standards.

 Petitions such as these that were approvable pursuant to INS policies or adjudicatory standards at the time of filing should be considered "approvable when filed." It is noteworthy that the national interest waiver category has undergone yet more changes since NYSDOT, rendering petitions that were denied post-NYSDOT once again approvable. An alien's grandfathered status should not be dependent on fluctuating legal interpretations.

The Regulation is Incompatible with the Realities of the Labor Certification Application Process.

Section 245.10(a)(3) establishes the same "approvable when filed" standard for labor certification applications as for immigrant petitions; viz., "properly filed," "non-frivolous" and "meritorious in fact." Although, as previously indicated, there may be some basis for the first two standards, there is no basis at all for the "meritorious in fact" standard, especially with respect to labor certification applications. In fact, the inclusion in the interim rule of a standard of "approvable when filed" or "meritorious in fact" is clearly erroneous, in direct contravention of INS' previously published official guidance and directly contradictory to Department of Labor policies and INS' previous representations to the Department of Labor and to the public. 

The Department of Labor's official and stated position is that all properly filed applications for labor certification are "approvable when filed." The reason is that any potential flaw in the application is subject to amendment; and, ultimately, approvability is based upon labor market availability which is determined after -- and often long after -- the date of filing. This position was expressly communicated by DOL to INS. The result of this communication was that INS in its official guidance to the field and to the public stated as follows:
"Properly filed" is the term used in reference to DOL certifications while "approvable at time of filing" is used with reference to INA petitions. Also note that the DOL has advised that they do not have the ability to state definitively if a certification is approvable or deniable during certification processing." Memorandum from Robert L. Bach dated June 10, 1999 (HQ 70/23.1-P, HQ 70/8-P).

Inexplicably, with this history, communicated both to the field and to the public, INS' interim rule directly contradicts DOL policy and INS guidance. This error creates several serious problems. First, it establishes a standard that the relevant agency -- DOL -- has no mechanism or standards to adjudicate.

Second, it creates an operational nightmare. Since INS examiners are unable to make this adjudication, they will seek advisory opinions from DOL. This remand to DOL will occur in the large number of cases where the adjustment of status application is based upon a petition or application other than the labor certification application that resulted in the alien being grandfathered. Since DOL processing times on regularly filed labor certification applications have traditionally ranged in excess of 3-4 years and are expected to be much lengthier with respect to applications filed in March and April, 2001, DOL will be asked to do the impossible -- pre-adjudicate approvability of an application that it may not adjudicate for a number of years. In fact, DOL often has no mechanism to even track the location of filed but unadjudicated labor certification applications.

Third, DOL has made increasing use of a streamlined procedure called "reduction in recruitment." "Reduction in recruitment" applications are processed far more expeditiously. However, existing DOL policy requires employers to withdraw labor certification applications filed under the regular method as a pre-condition to filing a reduction in recruitment labor certification application. In addition, DOL policy requests employers to withdraw labor certification applications when employees change positions or employers or when employees will be obtaining permanent resident status based upon an immigrant petition in another preference category. As a result, employers and attorneys involved in the labor certification process, in reliance upon INS published and official guidance that the withdrawal of a properly filed labor certification application would not in any way prejudice the grandfathered status of the alien, agreed to withdraw large numbers of these applications. There is now no mechanism available for DOL to ascertain whether these withdrawn applications were "approvable when filed" or "meritorious in fact."

To further exacerbate the problem that the interim rule creates, DOL is poised to promulgate two further regulations. One is a regulation that would facilitate the conversion of previously-filed regular labor certification applications to reduction in recruitment labor certification applications. The second would be the introduction of an entirely new expedited labor certification processing procedure entitled "PERM." Under this new program, employers would again be encouraged to withdraw previously-filed labor certification applications in order to avail themselves of the new procedures.

For all of these reasons, it is critical for INS to correct this error in the interim rule. Because of the clear nature of this error, the reliance of the public on contrary advice from the INS and the inter-agency operational problems this rule will create, we urge the INS not only to correct this problem in the final rule but also to take interim steps either to amend the final rule or to issue policy guidance ameliorating the serious negative impacts of this error.

Substitution of a Beneficiary on an Application for Labor Certification Should Not Affect Grandfathering.

Section 245.10(j) of the interim regulation provides that an alien who was previously the beneficiary of an application for labor certification but was subsequently replaced by another alien will not be considered to be grandfathered. Moreover, the regulation further provides that an alien who was substituted for the previous beneficiary of the application for labor certification after April 30, 2001, will not be considered to be grandfathered. Thus, no one would be grandfathered. 

To be consistent with the alien-based reading of the statute, the alien should be grandfathered if he or she was the beneficiary of a properly-filed application for labor certification filed on or before April 30, 2001, regardless of substitution. The regulation should also recognize that a visa petition will be required to be filed for the substituted alien beneficiary; and, if the alien is the beneficiary of a visa petition on a substituted application for labor certification filed on or before April 30, 2001, the visa petition will serve to grandfather the alien.

Evidentiary Options to Demonstrate Physical Presence on December 21, 2000 Should Be Expanded . 

A Joint Memorandum prepared by Senators Kennedy and Abraham shortly after the passage of the LIFE Act entitled "Joint Memorandum Concerning the Legal Immigration Family Equity Act of 2000 and the LIFE Act Amendments of 2000," clearly indicates that Congress did not intend that an alien be required to definitively demonstrate physical presence on December 21, 2000. The Memorandum states: "It may be difficult for an individual physically present on the day of enactment to establish his or her presence on that precise date to qualify for 245(i). The Immigration and Naturalization Service (INS) should therefore be flexible in the types of evidence it will accept to establish physical presence on the day of enactment."

Further, the President who signed the legislation into law gave to INS some "Proposed Guidelines for the Implementation of the 245(i) Extension" that recognized the difficulty that aliens would have demonstrating physical presence on the date of enactment. This non-exclusive list of documentation includes personal affidavits accompanied by other evidence and affidavits of third parties such as employers and community organizations.

Nevertheless, §245.10(n) of the interim rule requires the alien to present types of evidence that would be difficult for most undocumented aliens to obtain. Such aliens often cannot get driver's licenses. They don't have social security numbers. They often live with relatives and/or friends, and don't have utility bills in their names. They are often prohibited from opening bank accounts because of lack of finances and/or lack of social security numbers. They are often poor and have no credit.

Although the regulation includes many of the types of evidence listed in the White House Memorandum, it fails to recognize the validity of third party affidavits from credible sources. Third party affidavits are more reliable than affidavits from the applicant, especially if they are accompanied by another type of evidence demonstrating the applicant's physical presence on or about December 21, 2000. Therefore, 8 C.F.R. section 245.10(n)(4), providing for non-government types of documentation should be expanded to include third party affidavits, such as affidavits from employers, churches and community organizations; receipts for money and cash sent out of the country; receipts for payments; postmarked envelopes addressed to applicants in the United States; receipts for purchases in the applicant's name; church and baptismal records.

INS Is Mistaken in Denying Use of Previously Used Visa Petitions to Grandfather Beneficiaries under Section 245(i).

The Background section of the Interim Rule states that "a visa petition does not serve to grandfather the alien beneficiary if that alien has previously obtained lawful permanent resident status on the basis of that visa petition." Nothing in the statute, or in previous regulations implementing previous versions of section 245(i) with similar statutory language, indicates that an alien who at an earlier time was a permanent resident or a conditional permanent resident should be excluded from applying for adjustment of status under INA § 245(i) merely on account of the prior residence status. 

As tacitly acknowledged in the regulatory scheme, the categories of aliens included in the coverage of INA § 245(i) were intended by Congress to be expansive, not restrictive. The Service, based on a correct reading of the statute, has adopted an "alien-based" reading of INA § 245(i), whereby the alien is not limited to the particular "grandfathering" application or petition as the only possible basis for adjustment; rather the "grandfathering" petition or application simply preserves the right to adjust status and the alien may eventually adjust status on the basis of some other petition or application. Dependents are also benefited by the principal's "grandfathering" petition or application. The Service exercises lenience with respect to filing requirements, for example, deeming petitions as timely filed based on the postmark date rather than the actual receipt date. 

The Service requires only a minimum amount of information to be filed in support of a "grandfathering" petition. A petition may be "grandfathering" even if it is later withdrawn, denied or revoked. In providing examples of what petitions and applications are "approvable when filed" the Service states that it would accept a petition based on "a valid, bona fide marriage ending in divorce before the alien could adjust status."

In view of this clearly reflected intent to be inclusive, not restrictive, in defining the categories of "grandfathering" visa petitions for purposes of INA § 245(i), it is wholly inconsistent for INS to attempt to exclude from eligibility a visa petition that was the basis for a prior period of residence .

No reasonable policy rationale exists for barring former permanent residents or conditional permanent residents from using the visa petition that was the basis for residence as the "grandfathering" visa petition for purposes of INA § 245(i). The interim rule's Background section states that "when the Service has denied an immigrant visa petition (or has revoked a prior approval) based on ineligibility at the time of filing, the petition does not qualify to grandfather the alien beneficiary for purposes of section 245(i). Such ineligibility may be based on meritless or fraudulent petitions, such as those in which the claimed family or employment relationship at the time of the filing cannot serve as the basis for issuance of an immigrant visa." These comments fail to recognize that there are situations where an alien's residence is revoked because of circumstances that arise after obtaining residence--circumstances that do not involve any fraud or fault on the alien's behalf. Where the applicant obtains residence based upon a fraudulent petition, AILA agrees that the petition should not serve to grandfather the alien. However, where the applicant obtains residence based on a bona fide petition, and subsequently a change in circumstances such as a change in law, a change in policy, or a change in circumstances results in residence being revoked or removal of conditions on conditional residence being denied, the alien should stand in different shoes. In such a case, the alien's petition was clearly approvable, since the INS approved it, and approved it on the true facts as they existed at the time. The alien should not now be prejudiced because of changes that arise later. 

Many thousands of aliens may be improperly excluded from the benefits of INA § 245(i) if this restrictive interpretation is maintained. This excluded class of aliens would include those aliens who abandoned residence, for example, in order to return to a native country to care for an ill relative; as well as those who have failed for one reason or another to transition from conditional residence status to "unconditional" permanent residence status. Under INA § 216, concerning removal of the condition on residence status that was obtained on the basis of marriage, residence may be lost for any one of many reasons, including divorce from a bona fide marriage, failure to file a timely petition to remove the condition, or lack of cooperation of the non-petitioning spouse.
In each of the cases indicated above, the alien was formerly a resident or conditional resident of the United States, may be seeking the adjustment of status benefit under INA § 245(i), but may be excluded from such benefits if the "Background" comments are not deleted.

It would be incongruous for the Service to accept as a "grandfathering" petition a petition based on "a valid, bona fide marriage ending in divorce before the alien could adjust status" (see above), but not accept as a "grandfathering" petition a petition similarly based on "a valid, bona fide marriage ending in divorce" but in the latter case the divorce occurred after the alien adjusted status and before the I-751 for removal of conditions could be filed.

For the reasons set forth above 8 C.F.R. § 245.10(a)(3) should be amended to add the following as a final sentence to that provision:

"A bona fide visa petition that formed the basis for the alien to obtain lawful permanent resident status or conditional permanent resident status preserves the alien's grandfathered status."

Conclusion.

For the reasons discussed above, AILA urges amendment of the regulation to bring it more closely in line with the language and intent of the statute and with the realities of the processes that underlie section 245(i)'s operation.


Sincerely, 


AMERICAN IMMIGRATION LAWYERS ASSOCIATION