IndiaPost.com - Bia and second circuit on grandfathering and implications for employment-based cases

(Continued from last week's article)

Lke the respondent in Jara Riero, the Second Circuit case of Butt v. Gonzales involved the beneficiary of an employment-based visa petition who sought grandfathering on the basis of a marriage-based I-130 visa petition filed prior to April 30, 2001.

The I-130 petition, along with the adjustment application, was denied on May 30, 2003, because Butt did not show up to his adjustment interview, and thus defaulted. The Second Circuit remanded with, among other questions, instructions for the BIA to resolve the disagreement between the parties as to the meaning of "approvable when filed."

The Department of Homeland Security (DHS) argued that an application was "approvable when filed" if "it is meritorious and therefore should be granted based on the facts existing at the time of filing," while the Petitioner argued that a petition was "approvable when filed" if "there is no evidence of fraud, [or] if the application states a prima facie case for eligibility."

The Second Circuit also requested that the BIA provide instruction as to how it should be determined that an application or petition was "approvable when filed" if the petitioner defaulted on his application and did not appeal that determination.

The Jara Riero case resolves, in part, the latter question posed by the Second Circuit, because the BIA held that additional evidence may be considered by the Immigration Court to establish eligibility for adjustment of status under the grandfathering provisions of section 245(i). These cases primarily address the use of family-based immigrant petitions filed prior to April 30, 2001 as a basis for grandfathering, however.

They do not offer guidance regarding the questions specific to employment-based immigrant petitions or labor certifications that may arise when they are sought to be used for the same purpose. The difference between family and employment-based immigrant petitions is crucial, because the vast majority of family-based beneficiaries are in possession of the information needed to establish that the petitions were "meritorious in fact" and otherwise "approvable when filed."

If the petition is based on marriage, the beneficiary most likely has access to evidence of shared housing, bank accounts, and utility bills, and may also submit photos of the couple while they were together, and offer affidavits and testimony in support of his or her contention that the marriage was bona fide.

If the petition is based on another family relationship, the beneficiary also has standing to request documentation of the relationship from the appropriate authority. Employment-based I-140 immigrant petitions, however, involve consideration of information that may never become available to the beneficiary, and to which the beneficiary has no legal right.

Moreover, only the employer is provided with an opportunity to respond to any query on the I-140 petition. Such information includes financial and tax documentation showing that the employer petitioner has the ability to pay the beneficiary.

Many petitioners wish to keep this information confidential from the beneficiary of an immigrant visa petition. In addition, if the beneficiary was not employed by the petitioner at the time of filing, the beneficiary won't have copies of paystubs or W-2 forms showing that there was a bona fide job opportunity and that the petitioner had the ability to pay the beneficiary at the time the petition was filed.

If the petitioning employer has fallen on hard times and lost contact with the beneficiary, it may be very difficult to contact the petitioner or gather evidence, even with the assistance of a subpoena.

Finally, in the worst case scenario, if the petitioner has been accused of fraud in connection with its immigrant petitions and the beneficiary is unaware of the fraud and believed there to be a bona fide job opportunity at the end of the process, the beneficiary faces an almost insurmountable task in demonstrating that the petition and underlying labor certification were "approvable when filed."

In addition, an aspect of the employment-based context not addressed by the Jara Riero and Butt decisions is the use of either an immigrant visa petition or labor certification as the basis for grandfathering.

An applicant for adjustment under section 245(i) may rely on an approved labor certification, even where the applicant has been substituted for the original beneficiary at the immigrant visa stage. The regulations addressing this scenario provide that: An alien who was previously the beneficiary of the application for the labor certification but was subsequently replaced by another alien on or before April 30, 2001, will not be considered to be a grandfathered alien. An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien. Id.

The regulation, despite its oblique language, makes aliens who were substituted beneficiaries of labor certifications eligible for grandfathering, provided that the substitution took place prior to April 30, 2001.

Finally, another sticky issue not directly addressed by either Jara Riero or Butt is whether a beneficiary of an employment-based immigrant visa petition should be bound by a determination of fraud, when the beneficiary has no right to appeal the determination of USCIS. Such a determination potentially also affects the beneficiary's ability to adjust status as a discretionary matter, and may render him or her inadmissible.

One may argue that because 245(i) is an ameliorative statute, the beneficiary should be given the benefit of the doubt when making this evaluation. The argument is made stronger if the USCIS did not revoke the labor certification when making its fraud determination.

In such a scenario, one should rely on Jara Riero to argue that the denial of the I-140 petition should not preclude the beneficiary from showing that he or she had no part in the alleged fraud committed by the petitioner, was qualified for the position being offered, and believed there to be a bona fide job opportunity.

Although Jara Riero provides new insight into the evidence relevant to the determination of when an applicant for adjustment is grandfathered under section 245(i), and Butt promises additional insights to come, these cases are primarily concerned with family-based immigrant visa petitions and may not provide guidance for the specific issues that arise when a respondent in removal proceedings has no choice but to rely for grandfathering purposes on an employment-based visa petition that has been denied.

Nevertheless, these cases do provide a basis to argue that former beneficiaries of employment-based visa petitions have the right to submit evidence of their bona fide belief in the job opportunity, and that the petition or labor certification was approvable at the time it was filed.