Transit Policy at Border a Head Spinner; Last Days to Start a Labor Certification Case.

by Alan Lee, Esq.

 Transit Policy at Border A Head Spinner.

In a bind at the Southwest border because of exploding numbers of migrants, the Biden Administration put forth a two-year parole program for 30,000 per month for the four countries of Venezuela, Nicaragua, Haiti, and Cuba in January 2023, which reduced the number of migrant crossings by 97% in that month. In February, the Administration announced its plan to end the embattled pandemic related bar of Title 42 on May 11, 2023, under which the government has been expelling great numbers of migrants without allowing them the opportunity to apply for asylum. Based upon the Administration’s plan, the Supreme Court de-scheduled oral arguments in February in a suit challenging the use of Title 42.

In its place, the Administration published for comment a temporary transit bar rule effective on May 11, 2023, the ending date of Title 42, to continue discouraging migrants from illegally crossing the US Southwest border. The carrot continues to be the two-year parole program for proper entries, and the stick the inability in most cases to apply for asylum if crossing the border unlawfully unless the migrant made an asylum application in a country that he or she transited before arriving at the US border. Specifically, this proposed rule will establish a rebuttable presumption that certain noncitizens who enter the United States without documents sufficient for lawful admission are ineligible for asylum, if they traveled through a country other than their country of citizenship, nationality, or, if stateless, last habitual residence, unless they were provided appropriate authorization to travel to the United States to seek parole pursuant to a DHS-approved parole process; or presented themselves at a port of entry at a pre-scheduled time or demonstrated that the mechanism for scheduling was not possible to access or use; or sought asylum or other protection in a country through which they traveled and received a final decision denying that application.

This presumption could be rebutted, and would necessarily be rebutted if, at the time of entry, the noncitizen or a member of the noncitizen’s family had an acute medical emergency; faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or satisfied the definition of “victim of a severe form of trafficking in persons”. The presumption also would be rebutted in other exceptionally compelling circumstances, as adjudicators may determine. Unaccompanied children would be excepted from this presumption.

The rebuttable presumption would be a “condition” on asylum eligibility that would apply in affirmative and defensive asylum application merits adjudications, as well as during credible fear screenings. Individuals subject to the rebuttable presumption would remain eligible for withholding of removal and protection under the Convention Against Torture ("CAT")

Why is this a head spinner?

The first is opposition to the carrot. While 360,000 annually in a two-year parole program is not ungenerous, it should be remembered that Poland is hosting over 2 million Ukrainians and Colombia 2.5 million Venezuelans. Yet without any other plan, 20 states filed suit on January 24, 2023, saying that the expanded use of parole authority is unlawful.

Further head spinning is the direct contrast between the transit ban here and the one imposed under the US-Canada Safe Third Country Agreement in which arrival at a formal crossing point bars the migrant from making a claim for asylum in either country, and the migrant must in effect sneak into either country from the other to be eligible for asylum. Exceptions exist. An article in the New York Times on February 9, “Texas sent busloads of migrants to New York. Now the city is paying for tickets to Canada”, outlined the City’s handing out free tickets at the Port Authority bus terminal to Plattsburgh upstate near the border, normally a $75 bus ride of about seven hours. Once there, vans and cars charging anywhere from $50 per person to even $150 take them to Roxham Road, an informal crossing into Québec, where Canadian police officers immediately place them under arrest, direct them to a barn, and process them to be sent to shelters. The attraction of Canada is that once people make a refugee claim at the border, they immediately receive health coverage, social assistance and work permits within 3 to 4 months.

Where do we go from here? No one knows whether the carrot and stick approach will continue to work, or whether lawsuits against the transit ban or parole program will upend the plan.

It should be noted that the Biden Administration is also contemplating the revival of family detention of migrant families crossing illegally into the US to help prevent the anticipated surge beginning May 11. The policy as first put in place by the Trump administration caused family separations and soul-searching in the nation. Officials said that contrary to the Trump implementation, the Biden Administration would adhere to the terms of the Flores court settlement (Flores v. Reno, CV 85-4544 (USDC CD CA 1/28/97)) which only allows children to be detained for 20 days. Stay tuned.

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2022), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

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