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Case: 11-6120
Document: 006111151138
Filed: 12/08/2011
Page: 1
No. 11-6120
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MOHAN KUTTY,
Appellant,
v.
UNITED STATES DEPARTMENT OF LABOR,
Appellee.
ON APPEAL FROM THE EASTERN DISTRICT OF TENNESSEE
BRIEF OF AMICI CURIAE AMERICAN IMMIGRATION LAWYERS
ASSOCIATION AND INTERNATIONAL MEDICAL GRADUATE
TASKFORCE
counsel listed on following page
AILA InfoNet Doc. No. 11121235. (Posted 12/12/11)
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Russell Reid Abrutyn
American Immigration Lawyers Association
3250 West Big Beaver, Ste. 529
Troy, MI 48084
Telephone: (248) 643-0642
(lead counsel)
Jennifer Adele Minear
IMG Taskforce
1111 E. Main Street, Ste. 1500
Richmond, VA 23219
Telephone: (804) 775-3822
Deborah S. Smith
Law Office of Deborah S. Smith
7 West Sixth Avenue, Suite 4M
Helena, MT 59601
Telephone: (406) 457-5345
Gregory Siskind
IMG Taskforce
Siskind Susser, PC
1028 Oakhaven Road
Memphis, TN 38119
Telephone: (901) 682-6455
Scott D. Pollock
Scott D. Pollock & Associates, P.C.
105 W. Madison, Suite 2200
Chicago, IL 60602
Telephone: (312) 444-1940
Attorneys for Amici Curiae
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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Disclosure of Corporate Affiliations
and Financial Interest
Sixth Circuit
Case Number: 11-6120
Case Name: Kutty v. Department of Labor
Name of counsel: Russell Reid Abrutyn
Pursuant to 6th Cir. R. 26.1, Amici AILA and IMGT
Name of Party
makes the following disclosure:
1.
Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the
identity of the parent corporation or affiliate and the relationship between it and the named
party:
no
2.
Is there a publicly owned corporation, not a party to the appeal, that has a financial interest
in the outcome? If yes, list the identity of such corporation and the nature of the financial
interest:
no
CERTIFICATE OF SERVICE
December 8, 2011
I certify that on _____________________________________
the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not,
by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Russell Reid Abrutyn
This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs,
im m ediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form .
6CA-1
8/08
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TABLE OF CONTENTS
Table of Authorities .………………………………………….………................. vi
Introduction ………………………………………………………………………. 1
Statement of Interest …………………………………………………………… 3
I. Legal Background Regarding J-1 Waiver Processing and
H-1B Petitions …………………………………………………................... 5
A. The J-1 Exchange Visitor Program ......................................................... 5
B. The H-1B Specialty Occupation Program ............................................... 8
II. Argument ………………………….................................................................. 10
A. The District Court’s Conclusion that an Employer is
Responsible for the Legal Fees and Costs Associated
with an Employee’s J-1 Waiver Application Lacks any Basis in
Law or Fact ............................................................................................ 10
1. There is no legal requirement that an employer pay
J-1 waiver fees ............................................................................. 11
2. Unlike an H-1B visa or status, which ties an
employee to a particular employer, a J-1 waiver is an
immigration benefit belonging solely to the noncitizen
and is not tied to any employer .................................................... 13
3. Requiring H-1B employers to pay for a noncitizen’s
J-1 waiver process unsettles this area of law and may
discourage employers from hiring international medical
graduates in medically underserved areas .................................... 16
B. Amici Urge the Court to Decide the Case on the Narrow
Set of Facts Presented and to Refrain from Addressing the
Validity of the DOL’s Regulations on the Payment of
Attorney’s Fees for the H-1B Process .................................................... 18
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1. The attorney’s fees regulation exceeds the DOL’s
statutory authority ........................................................................ 20
2. The DOL has mischaracterized attorney’s fees as a
business expense .......................................................................... 20
3. The DOL’s attorney’s fees regulation is
counterproductive to the protection of U.S. workers and
H-1B nonimmigrants ................................................................... 23
Conclusion .……………………………………………………………….…… 25
Certificate of Compliance …………………………………………….................. 27
Certificate of Service ............................................................................................. 28
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TABLE OF AUTHORITIES
Table of Cases
Kutty v. Department of Labor, 2011 WL 3664476
(E.D. Tenn. Aug. 19, 2011) ....................................................... 11, 13-14, 20
Statutes
5 U.S.C. § 551 ................................................................................................... 2, 19
8 U.S.C. § 1101(a)(15)(H) ....................................................................................... 8
8 U.S.C. § 1101(a)(15)(O) ..................................................................................... 15
8 U.S.C. § 1182 ..................................................................................................... 18
8 U.S.C. § 1182(c)(9) ............................................................................................ 10
8 U.S.C. § 1182(c)(9)(A) ................................................................................. 10, 23
8 U.S.C. § 1182(c)(12) ..................................................................................... 10
8 U.S.C. § 1182(c)(12)(A) ............................................................................... 10, 23
8 U.S.C. § 1182(e) ..................................................................................... 6, 7, 26
8 U.S.C. § 1182(e)(iii) ............................................................................................. 7
8 U.S.C. § 1182(n) ................................................................................................... 9
8 U.S.C. § 1182(n)(2)(C)(vi) ................................................................... 2, 11, 20
8 U.S.C. § 1182(n)(2)(C)(vi)(I) ................................................................... 11, 19
8 U.S.C. § 1182(n)(2)(C)(vi)(II) ................................................................... 11, 19
8 U.S.C. § 1184(i)(1) ............................................................................................... 8
8 U.S.C. § 1184(l) .................................................................................................... 8
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8 U.S.C. § 1184(l)(1)(C)ii) ...................................................................................... 8
8 U.S.C. § 1184(l)(2) ............................................................................................. 10
8 U.S.C. § 1184(n) ................................................................................................. 22
8 U.S.C. § 1258 ..................................................................................................... 10
Regulations
8 C.F.R. § 212.7(c)(9)(iii) ........................................................................................ 8
8 C.F.R. § 214.1 ..................................................................................................... 21
8 C.F.R. § 214.2(h)(4)(v) ......................................................................................... 9
8 C.F.R. § 214.2(h)(4)(viii) ..................................................................................... 9
8 C.F.R. § 214.2(h)(4)(iii)(C) .................................................................................. 9
8 C.F.R. § 248.2(a)(3) .............................................................................................. 6
20 C.F.R. § 655.700(a)(3) ........................................................................................ 9
20 C.F.R. § 655.731(a) .......................................................................................... 23
20 C.F.R. § 655.731(c)(9) ...................................................................................... 12
20 C.F.R. § 655.731(c)(9)(i) .................................................................................. 23
20 C.F.R. § 655.731(c)(9)(ii) ........................................................... 2, 10, 12, 19, 20
20 C.F.R. § 655.731(c)(9)(iii)(C) ........................................................... 2, 12-13, 19
20 C.F.R. § 655.731(c)(12) .................................................................................... 21
Other Authorities
65 Fed. Reg. 80110 (Dec. 20, 2000) ...................................................................... 21
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AMA, AMA-IMG Section Governing Council, International
Medical Graduates in American Medicine: Contemporary
challenges and opportunities, 35 (2010) ..................................................... 16
American Hospital Association, The Opportunities and
Challenges for Rural Health Hospitals in an Era of
Health Reform (April 2011) ........................................................................ 17
E.B. Solomont, Hospital Woes are Worse in N.Y.
Than Rest of U.S.,, N.Y. Sun, Aug. 26, 2008 .............................................. 17
L. Gary Hart et al., International Medical Graduate
Physicians in the United States: Changes Since 1981,
26 Health Aff. 1159, 1159-1165, (2007) .................................................... 16
October 18, 2011 AILA Department of State Liaison
Meeting with the Waiver Review Division ................................................. 15
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INTRODUCTION
Amici Curiae submit this brief to bring to the Court’s attention two issues
that will affect tens of thousands of employers and workers and that could impact
the availability of health care in medical shortage areas. The District Court held
that the attorney’s fees and costs associated with an H-1B are “business expenses”
within the meaning of the Department of Labor’s (“DOL”) regulation that must be
paid by the employer. Significantly, for the first time of which Amici are aware,
the District Court also held that the attorney’s fees and costs associated with a
noncitizen’s J-1 waiver application must be borne by the employer for whom that
individual intends to work following J-1 waiver approval. Nothing in the federal
statute, regulation, or Congressional record supports this conclusion.
The J-1 waiver application is submitted directly by the noncitizen to the U.S.
government and is entirely personal to the noncitizen applicant. In the first place,
and contrary to the District Court’s findings, a J-1 waiver is not universally
required before approval of an H-1B petition. And even in cases where a J-1
waiver is a prerequisite for H-1B employment, the benefits of J-1 waiver approval
belong exclusively to the noncitizen and can be used by him to secure employment
authorization with a different employer, or to seek lawful permanent resident status
through some other basis, such as marriage to a U.S. citizen. The District Court
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accordingly erred in ruling that J-1 waiver costs are encompassed within an
employer’s “business expense,” and therefore must be covered by the employer.
In addition, Amici respectfully submit that the DOL regulation purporting to
prohibit payment of H-1B attorney’s and certain filing fees by the foreign national,
and on which the District Court’s J-1 waiver ruling is based, represents an ultra
vires intrusion on the attorney-client relationship, undermines the right to counsel,
and may affect the ability of many H-1B employers to hire foreign workers.
Underlying the H-1B-related issues raised below are the fundamental questions of
whether the regulations at issue, 20 C.F.R. §§ 655.731(c)(9)(ii), (iii)(C), were
properly promulgated and whether they exceed the “statutory jurisdiction,
authority, or limitations” set forth in 8 U.S.C. § 1182(n)(2)(C)(vi). 5 U.S.C. § 551
et seq. The resolution of this question will have enormous impact on the 85,000
new H-1B employees admitted to the United States each year, their American
employers, and the attorneys who represent them.
Resolving the validity and scope of the H-1B fees regulations is vitally
important to the immigration bar and to employers of H-1B workers. Amici
believe that the district court decision is grounded on a misunderstanding of the H1B process. The employer-appellant in this case appears to have waived on appeal
his claims below concerning payment of H-1B attorney's and filing fees, and in any
event did not directly challenge the H-1B fees regulations below. Accordingly,
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Amici request the Court to be careful in its holding on the J-1 waiver matter, and to
refrain from addressing issues pertaining to H-1B fees that were not fully
developed below or necessary to this appeal’s resolution.
The scope and propriety of the H-1B fees regulations remain in contention in
other cases. In deciding the extent of the Appellant’s alleged violations, Amici
urge the Court to decide the case carefully on the narrow set of facts presented.1 A
ruling on the scope and validity of the H-1B fees regulations should be preserved
for another case in which such issues are squarely presented and fully developed.
STATEMENT OF INTEREST
The American Immigration Lawyers Association (“AILA”) and the
International Medical Graduate Taskforce (“IMGT”)2 respectfully submit this brief
in order to provide background information and legal context regarding the
immigration issues presented in this case, and to offer arguments with regard to the
specific issues of employer liability for attorney’s fees and costs associated with
the J-1 waiver and H-1B petition process, as raised in the court below.
1
Amici take no position on any of the other questions presented in the appeal or
the merits of the appeal.
2
Counsel for the parties in this appeal did not author this brief. The parties and
their counsel did not contribute money that was intended to fund the preparation or
submission of this brief. No person, other than the amici, their members, or their
counsel, contributed money that was intended to fund the preparation or
submission of this brief.
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AILA is a national bar organization with over 11,000 members throughout
the United States, including lawyers and law school professors who practice and
teach in the field of immigration and nationality law. AILA seeks to advance the
administration of law pertaining to immigration, nationality, and naturalization; to
cultivate the jurisprudence of the immigration laws; to facilitate the administration
of justice and to elevate the standard of integrity, honor, and courtesy of those
appearing in a representative capacity in immigration and naturalization matters.
AILA’s members regularly practice before the Department of Homeland Security,
the Department of Labor, and the Executive Office for Immigration Review
(immigration courts), as well as before the United States District Courts, Courts of
Appeal, and the Supreme Court of the United States.
AILA has appeared as Amicus before numerous courts and administrative
agencies relating to the administration and interpretation of the Immigration and
Nationality Act and its implementing regulations. AILA attorneys represent a
significant number of H-1B employers and employees, as well as applicants for J-1
waivers. AILA has a strong interest in the interpretation and administration of the
Department of Labor’s regulations that purport to dictate who must pay for the
attorney’s fees and costs associated with processing J-1 waiver applications and H1B petitions.
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The IMGT is an independent bar organization that is comprised of attorneys
dedicated to helping Americans in rural and other physician-shortage areas obtain
urgently needed basic medical services. Among other goals, IMGT strives to
educate national and state policy makers, administrative officials, and the
American public on the need for fair and reasonable laws that permit international
medical graduates to become licensed as physicians and to begin or continue their
medical careers in the United States. IMGT works on behalf of universities,
teaching hospitals, medical centers, and clinics of all sizes, and on behalf of
international medical graduates seeking necessary immigration-related
authorizations. IMGT attorneys represent the vast majority of employers and J-1
physicians who require immigration counsel in the U.S. The group is therefore
inherently interested in the outcome of litigation that will impact the ability of J-1
physicians and their employers to seek legal counsel, and in any constraints placed
upon the apportionment of legal costs for that representation.
I.
Legal Background Regarding J-1 Waiver Processing and H-1B Petitions
A.
The J-1 Exchange Visitor Program
The United States J-1 Exchange Visitor Visa program promotes mutual
understanding and cooperation between the United States and other nations by
offering foreign visitors the opportunity to participate in cultural and educational
programs sponsored by public and private entities designated by the U.S.
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Department of State.3 Certain types of J-1 visitors, including those who complete
graduate medical education in the U.S., are automatically subject to a requirement
that they return to their home countries for an aggregate of two years following
completion of their J-1 stay before becoming eligible to apply for a change of
nonimmigrant status, to obtain H-1B or L-1 visas, or to obtain Lawful Permanent
Resident status. 8 U.S.C. § 1182(e); 8 C.F.R. § 248.2(a)(3). This is in keeping
with the public policy purpose of the Exchange Visitor Program, which is to
expose foreign visitors to U.S. cultural and educational information that the visitor
then takes back to his or her home country to share and apply to that country’s
benefit.
J-1s subject to the two year home residency requirement may apply for a
waiver on several different grounds: (1) exceptional hardship to a U.S. citizen or
Lawful Permanent Resident spouse or child of the J-1; (2) persecution to the J-1
based on race, religion or political opinion that would ensue if the J-1 were
required to return; or (3) a no objection statement from the J-1’s home country.4 8
U.S.C. § 1182(e). In addition, international medical graduates may apply for a J-1
3
See http://travel.state.gov/visa/temp/types/types_1267.html#1 (last visited
December 8, 2011).
4
International medical graduates are ineligible to obtain a J-1 waiver based on a
“no objection” statement provided by their home country government but may seek
a waiver based on one of the other three enumerated grounds. 8 U.S.C. § 1182(e).
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waiver on the basis of a commitment to provide full-time clinical care for at least
three years in a medically underserved area of the U.S. where that waiver is
recommended by a state Department of Health or a federal agency. 8 U.S.C. §
1182(e)(iii).
The J-1 waiver application process varies somewhat depending on the basis
for the waiver. However, in all cases, the waiver application form is submitted by
the J-1 applicant directly to the U.S. Department of State along with a filing fee.5
In the case of a J-1 waiver based on a physician’s commitment to work in a
medically underserved area (hereinafter “J-1 physician waiver”), the waiver
applicant must also secure the favorable recommendation of a state Department of
Health or other interested federal agency before the USCIS will approve the J-1
waiver. 8 U.S.C. § 1184(l). In these cases, the J-1 waiver applicant must submit,
among other things, an employment contract with an employer located in a
medically underserved area.
Once the J-1 physician waiver is approved by USCIS, the employer with
whom the physician has signed the employment contract must file a petition with
USCIS to change the physician’s immigration status from J-1 to H-1B. 8 C.F.R. §
5
See http://travel.state.gov/visa/temp/info/info_5503.html (last visited December
8, 2011). The waiver application itself, Form DS-3035, does not ask for any
information about the employer. The online form is available through the previous
link.
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212.7(c)(9)(iii). The physician must remain employed with the same employer for
the full three-year term unless “extenuating circumstances” justify the transfer of
the J-1 waiver commitment to another employer in a medically underserved area
before the three year term is complete. 8 U.S.C. § 1184(l)(1)(C)(ii).
B.
The H-1B Specialty Occupation Program
The H-1B is a temporary nonimmigrant category available to noncitizens
who have been offered U.S. employment in a specialty occupation or as a fashion
model. 8 U.S.C. § 1101(a)(15)(H). A “specialty occupation” is an occupation that
requires (1) theoretical and practical application of a body of highly specialized
knowledge; and (2) attainment of a bachelor’s or higher degree in the specific
specialty (or its equivalent) as a minimum for entry into the occupation in the
United States. 8 U.S.C. § 1184(i)(1). This includes a broad array of occupational
categories, including physicians. USCIS approves over 200,000 H-1B
nonimmigrant petitions each fiscal year.6
An H-1B nonimmigrant must establish that he or she has completed the
degree required as the minimum standard for entry into the occupation in the
United States, or the educational or experiential equivalent of such a degree. 8
6
http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/H-1B/h1bfy-09-characteristics.pdf. (citing 214,271 H-1B petitions approved in Fiscal Year
2009, the most recently published data available).
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C.F.R. § 214.2(h)(4)(iii)(C). If a license is required for the occupation, an H-1B
nonimmigrant must document that he or she has full state licensure to practice in
the occupation, unless an exception applies. 8 C.F.R. § 214.2(h)(4)(v). In
addition to a medical license, international medical graduates planning to engage in
direct patient care must show that they have graduated from medical school, passed
the U.S. Medical Licensing Examination and obtained certification by the
Educational Commission of Foreign Medical Graduates. 8 C.F.R. §
214.2(h)(4)(viii).
In addition, the U.S. employer must file with the DOL a labor condition
application (“LCA”) that includes certain attestations. 8 U.S.C. 1182(n). The LCA
must be certified by the DOL before the employer petitions USCIS for permission
to hire the H-1B workers. 20 C.F.R. § 655.700(a)(3). Once the H-1B petition is
approved by USCIS, the approved petition is sent to a U.S. consulate where the
noncitizen can obtain an H-1B visa to enter the U.S. Alternatively, if the
noncitizen is already in the U.S. in a different nonimmigrant category (e.g., a J-1
physician completing graduate medical education), the USCIS can change the
nonimmigrant’s status to H-1B. 8 U.S.C. §§ 1258, 1184(l)(2).
The filing fees for the H-1B petition can total as much as $2,325. 8 U.S.C. §
1184(c)(9), (12). DOL regulations treat all required filing fees as “business
expenses” that must be covered by the employer. 20 C.F.R. § 655.731(c)(9)(ii).
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Further, the federal statute imposes the re-training and fraud prevention fees on the
employer.7
II.
Argument
A.
The District Court’s Conclusion that an Employer is Responsible for
the Legal Fees and Costs Associated with an Employee’s J-1 Waiver
Application Lacks any Basis in Law or Fact
The District Court affirmed the DOL Administrative Review Board’s
conclusion that requiring an employer to pay the costs of obtaining a J-1 waiver on
behalf of a prospective employee represented a reasonable construction of the
statute because those fees qualified as “business expenses.” Kutty v. Department
of Labor, 2011 WL 3664476 at *18-19 (E.D. Tenn. Aug. 19, 2011). The court’s
reasoning was based on inaccurate assumptions about the nature of J-1 waiver
applications, as well as an unfounded reading of both the statute and the regulation.
7
“The Attorney General shall impose a fee on an employer...initially to grant an
alien [H-1B] nonimmigrant status...to extend the stay of an alien having such status
(unless the employer previously has obtained an extension for such alien)...or to
obtain authorization for an alien having such status to change employers.” 8
U.S.C. § 1184(c)(9)(A). “In addition to any other fees authorized by law, the
Secretary of the Department of Homeland Security shall impose a fraud prevention
and detection fee on an employer filing a[n H-1B] petition.” 8 U.S.C. §
1184(c)(12)(A).
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There is no legal requirement that an employer pay J-1
waiver fees
Neither the federal statute nor the implementing DOL regulations require an
employer to bear the legal fees or costs associated with a noncitizen’s application
for a waiver of the two year home residency requirement. Congress expressly has
listed the expenses that may not be passed on to an H-1B employee. 8 U.S.C. §§
1182(n)(2)(C)(vi)(I), (II).8 J-1 waiver expenses are not among these. The DOL’s
implementing regulations are equally clear that “business expenses” include
“attorney fees and other costs which are connected to the performance of H-1B
program functions are required to be performed by the employer, e.g., preparation
and filing of LCA and H-1B petition.” 20 C.F.R. §§ 655.731(c)(9)(ii), (iii)(C)9. J-
8
8 U.S.C. § 1182(n)(2)(C)(vi) provides in relevant part:
(vi)(I) It is a violation of this clause for an employer who has filed an application
under this subsection to require an H-1B nonimmigrant to pay a penalty for ceasing
employment with the employer prior to a date agreed to by the nonimmigrant and
the employer. ...
(II) It is a violation of this clause for an employer who has filed an application
under this subsection to require an alien who is the subject of a petition filed under
section 1184(c)(1) of this title, for which a fee is imposed under section 1184(c)(9)
of this title, to reimburse, or otherwise compensate, the employer for part or all of
the cost of such fee. It is a violation of this clause for such an employer otherwise
to accept such reimbursement or compensation from such an alien.
9
20 C.F.R. § 655.731(c)(9) provides in relevant part:
(9) “Authorized deductions,” for purposes of the employer's satisfaction of the H1B required wage obligation, means a deduction from wages in complete
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1 waiver expenses are not referenced anywhere in the Department of Labor’s
regulation as “business expenses” that must be paid by the H-1B employer.10
Requiring an employer to pay for the J-1 waiver process for an H-1B
employee not only is not encompassed within the statute or regulations, there is no
rational basis for connecting J-1 waiver fees to the H-1B program. They are no
compliance with one of the following three sets of criteria (i.e., paragraph (c)(9)(i),
(ii), or (iii))-...
(ii) Deduction which is authorized by a collective bargaining agreement, or is
reasonable and customary in the occupation and/or area of employment ... except
that the deduction may not recoup a business expense(s) of the employer
(including attorney fees and other costs connected to the performance of H-1B
program functions which are required to be performed by the employer, e.g.,
preparation and filing of LCA and H-1B petition) ... or
(iii) Deduction which meets the following requirements:
...
(C) Is not a recoupment of the employer's business expense (e.g., tools and
equipment; transportation costs where such transportation is an incident of, and
necessary to, the employment; living expenses when the employee is traveling on
the employer's business; attorney fees and other costs connected to the
performance of H-1B program functions which are required to be performed by the
employer (e.g., preparation and filing of LCA and H-1B petition).
10
As explained infra in Section II.B, AILA and IMGT believe that the DOL’s
“business expense” regulation is ultra vires to the extent that it prohibits fees and
costs from being borne by the employee that go beyond the proscriptions provided
by Congress. But even assuming the validity of the regulation, J-1 waiver fees are
not an H-1B “business expense”, in that they are not connected to H-1B program
functions required to be performed by the employer. 20 C.F.R. § 655.731(c)(9)(ii),
(iii)(C).
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more connected to the H-1B program than, for example, an employee’s moving
expenses or licensing fees, or the immigration expenses for an H-1B employee’s
family members. There are many expenses that must be incurred before an H-1B
worker may commence employment. Many employers choose to cover some or all
of the expenses related to J-1 waivers or other expenses on behalf of their
employees as a benefit to the worker. But neither the statute nor the regulations
require an H-1B employer to cover all expenses related to the employment.
2.
Unlike an H-1B visa or status, which ties an employee to a
particular employer, a J-1 waiver is an immigration benefit
belonging solely to the noncitizen and is not tied to any
employer
The District Court accepted DOL’s proposition that J-1 waiver fees and
expenses are “necessary to secure approval of the H-1B petitions.” Kutty, supra, at
*19. Because it is the employer, and not the employee, who files the H-1B petition
and attests that it will comply with the Immigration and Nationality Act, the
district court assumed that the J-1 petition was part of the H-1B process and
primarily benefited the employer. Id. The District Court misunderstood the J-1
waiver process.
The J-1 waiver process is in addition to, and distinct from, the H-1B process.
See discussion supra at section I. A J-1 waiver must precede the H-1B process.
Once a J-1 nonimmigrant obtains a waiver and completes, if applicable, a three13
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year employment commitment in a medically underserved area, that individual is
free to apply for a change of status or adjustment of status through any employer or
through family-based means. The waiver is filed by the J-1 nonimmigrant, and not
by the employer.11 And when granted, the benefits of the J-1 waiver belong
exclusively to the noncitizen.
A J-1 waiver is not always required before an employer may file an H-1B
petition. As discussed above, those who return to their home countries for two
years following completion of J-1 training do not require a waiver before seeking
H-1B status. Alternatively, a J-1 nonimmigrant can return home and obtain a
work-authorized nonimmigrant visa that is not precluded by the two-year home
residency requirement, such as in the O-1 category. 8 U.S.C. § 1101(a)(15)(O).
Even in those instances where a J-1 waiver is required, the waiver may be
completely unrelated to employment with a particular H-1B sponsoring employer
(i.e., where the waiver is granted based on hardship or persecution).
As further evidence that the J-1 waiver is specific to the nonimmigrant and
not to the employer, during a recent meeting with AILA, the U.S. Department of
State’s Waiver Review Division confirmed that it would not recognize an
11
Detailed instructions from the Department of State on the J-1 waiver process,
including a link to the application form, are available at
http://travel.state.gov/visa/temp/info/info_1296.html.
14
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employer’s attorney representation form (called a G-28 Notice of Entry of
Appearance as Attorney or Representative) as part of the J-1 waiver process
because “the J-1 waiver application is specific to the applicant.”12 And, unlike the
H-1B petition that only confers status for as long as the worker remains employed
by the H-1B sponsoring employer, the individual J-1 waiver applicant may
continue to benefit from an approved waiver application regardless of whether he
or she remains employed with the H-1B sponsor.
12
See minutes from October 18, 2011 AILA Department of State Liaison Meeting
with the Waiver Review Division, available at AILA Infonet Doc. No. 11102423,
http://www.aila.org/content/default.aspx?docid=37429 (last visited December 8,
2011) (attached as Appendix A):
Q15. The Department of State has long recognized a J-1 waiver applicant’s right to
legal counsel and provides the applicant an opportunity for the applicant to
designate an attorney on both the DS-3035 application form itself and by
presenting a G-28. Can the Waiver Review Division confirm that the J-1 waiver
sponsor for an IGA waiver under INA 214(l) (i.e., the entity for whom the J-1
physician will work in service of the 3 year J-1 waiver commitment once the
waiver is granted) need not be represented by counsel during the J-1 waiver
process? Would WRD even recognize a G-28 signed by a J-1 waiver sponsoring
employer, since the J-1 waiver application (DS-3035) is specific to the applicant?
Answer: A J-1 waiver sponsor for an IGA physician need not be represented
by counsel during the J-1 waiver process. WRD would not recognize a G-28
signed by a sponsoring employer, since the J-1 waiver application is specific
to the applicant.
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Requiring H-1B employers to pay for a noncitizen’s J-1
waiver process unsettles this area of law and may
discourage employers from hiring international medical
graduates in medically underserved areas
If the J-1 portion of the District Court’s decision is upheld, it could have a
devastating impact on health care providers in medically underserved areas who
desperately need to hire more physicians but are unable to bear the legal fees and
costs of J-1 waiver applications that neither the law nor common sense require
them to pay. Employers that hire J-1 waiver physicians in medically underserved
areas include rural community health clinics, small nonprofit hospitals, Federally
Qualified Health Centers, and small practice groups in remote or inner city areas.13
These health care providers are very often significantly underfunded in addition to
being understaffed.14 They are already burdened with a federal H-1B fee
13
See, e.g., L. Gary Hart et al., International Medical Graduate Physicians in the
United States: Changes Since 1981, 26 Health Aff. 1159, 1159-1165, (2007)
(discussing the essential role that foreign physicians play in staffing small, rural
critical access hospitals and noting that 84% of rural international medical graduate
primary care physicians practice in isolated small rural areas located within a
Health Professional Shortage Area, as compared with 74% of their U.S. medical
graduate peers); AMA, AMA-IMG Section Governing Council, International
Medical Graduates in American Medicine: Contemporary challenges and
opportunities, 35 (2010), citing AMA, Physician Characteristics and Distribution
in the U.S. (2009) (finding that nearly 40% of physicians employed in inner-city
metropolitan areas are international medical graduates).
14
See, e.g., American Hospital Association, The Opportunities and Challenges for
Rural Health Hospitals in an Era of Health Reform (April 2011), at
http://www.aha.org/research/policy/2011.shtml (discussing the financial limitations
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regulation that purports to characterize all H-1B-related attorney’s fees as nonreimbursable “business expenses.” If this court determines that they are also
required to pay for the physician’s J-1 waiver application, many employers may be
unable to hire J-1 waiver physicians. Since J-1 waiver physicians commit to work
in health shortage areas that have difficulty attracting U.S. physicians, this could
lead to further health care deficits for U.S. citizens.
Although this case involves noncitizen physicians, it is important to
emphasize that the district court’s decision will affect all J-1 waiver and H-1B
situations. Many former J-1 exchange visitors work as H-1B teachers in urban
school districts, dentists in community health centers, bilingual social workers,
almost any job that can be imagined that requires a bachelor’s degree in a specific
field. Some of these positions are even unionized, and the collective bargaining
agreements do not always provide for payment of additional fees for immigration
processing. Prospective H-1B employees may require waivers for criminal or
other grounds of inadmissibility and the district court’s decision could arguably
impose a duty on employers to pay for these types of waivers as well. See 8 U.S.C.
and challenges of small rural hospitals given low-patient volumes that generate less
revenue and patient populations that are largely uninsured); E.B. Solomont,
Hospital Woes are Worse in N.Y. Than Rest of U.S.,, N.Y. Sun, Aug. 26, 2008
(discussing multi-year national trends of nonprofit hospital expenditures exceeding
revenue).
17
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§ 1182. The decision below will create uncertainty in the J-1 waiver and H-1B
process and employers, employees, and attorneys will not know who is required to
pay for what. It unsettles an otherwise settled area of law and could lead to
protracted litigation by disgruntled former J-1 exchange visitors against their H-1B
employers, particularly if the decision is applied retroactively to impose liability on
employers who hired J-1 exchange visitors in the past without paying the fees and
costs associated with their J-1 waiver applications.
Upholding the District Court’s decision with regard to payment of J-1
waiver attorney and filing fees could have a chilling effect on the processing of J-1
waiver applications generally, and on J-1 physician waiver applications more
specifically. Accordingly, AILA and IMGT urge the court to reverse the district
court’s decision to impose J-1 waiver costs on the H-1B employer.
B.
Amici Urge the Court to Decide the Case on the Narrow Set of Facts
Presented and to Refrain from Addressing the Validity of the DOL’s
Regulations on the Payment of Attorney’s Fees for the H-1B
Process
Congress clearly delineated what expenses the employer must bear in the H1B process, confirming via statute that an employer may not charge an H-1B
employee a financial penalty for prematurely terminating employment or the
statutory re-training fee. 8 U.S.C. §§ 1182(n)(2)(C)(vi)(I), (II). The DOL’s
implementing regulation exceeded this limited statutory mandate by prohibiting
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deductions of “business expenses” from an H-1B worker’s salary where those
deductions would reduce the wage below the “required wage” (i.e., the higher of
the prevailing wage for the position or the actual wage paid to other similarly
situated workers). 20 C.F.R. §§ 655.731(c)(9)(ii), (iii)(C). The Appellant did not
overtly challenge the validity of this regulation below. See Petitioner’s
Memorandum of Law, Document 18, at pages 28-29; see also Appellant’s Brief, at
pages 46-47. To the best of Amici’s knowledge, no court has addressed the
validity of this regulation or engaged in an in-depth analysis of the scope of an
employer’s obligation to pay the attorney’s fees and other costs, including J-1
waivers and other matters incidental to the employment relationship. The Court
should refrain from addressing these significant issues until they are more squarely
and adequately presented for review.
Nonetheless, because the court below did hold that requiring an H-1B
employer to cover all attorney’s fees is a reasonable construction of the statute, and
because that determination negatively impacts the tens thousands of potential H-1B
employers and employee beneficiaries, AILA and IMGT would like to briefly
make the Court aware of the complexity of this issue and what we perceive to be
fundamental problems with the DOL’s unwarranted intrusion into attorney-client
relationship.
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The attorney’s fees regulation exceeds the DOL’s statutory
authority
1.
The attorney’s fee regulation imposes a prohibition on an H-1B employer
that is not contemplated in or even suggested by the statute. Compare 20 C.F.R. §
655.731(c)(9)(ii) with 8 U.S.C. § 1182(n)(2)(C)(vi). Because it exceeds the DOL’s
“statutory jurisdiction, authority, or limitations,” it is an invalid exercise of
authority. 5 U.S.C. § 551. AILA and IMGT believe the regulation is ultra vires
and unenforceable.
The Appellant did not raise this argument below or on appeal. Accordingly,
Amici request the Court to refrain from addressing issues pertaining to H-1B fees
that were not fully developed below or necessary to this appeal’s resolution.
2.
The DOL has mischaracterized attorney’s fees as a business
expense
Amici believe that the District Court erred in characterizing H-1B attorney’s
fees as a business expense. The court reasoned that “it is the employer – not the
employee – who files the H-1B petition. It is also the employer who attests that he
will comply with the responsibilities under the INA, not the employee. It is a
reasonable interpretation of the statute to impose costs on the employer, not the
employee.” Kutty, supra, at *19. Although it was not an issue below or on
appeal, Amici believe that the regulation is ultra vires because it is contrary to the
clear language of the statute.
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While the employer “files” the H-1B petition and “attests” that it will
comply with the responsibilities under the INA, the employee must also participate
actively in the H-1B petition and meet and follow the statutory and regulatory
requirements for maintaining lawful status. 8 C.F.R. § 214.1. The District Court’s
decision misapprehends the fundamental nature of the H-1B petition, the benefits
of which apply co-equally to both the employer and the sponsored H-1B worker.
Even if attorney’s fees for H-1B petitions may sometimes be a business
expense, they are not always so. First, the regulations more specifically say that
unauthorized deductions are prohibited only insofar as they would cause the net
wage to fall below the “required wage.” The DOL said the following in
promulgating the regulations:
An H-1B employer is prohibited from imposing its business expenses
on the H-1B worker – including attorney fees and other expenses
associated with the filing of an LCA and H-1B petition – only to the
extent that the assessment would reduce the H-1B worker’s pay below
the required wage, i.e. the higher of the prevailing wage and the actual
wage.
65 Fed. Reg. 80110, 80199 (Dec. 20, 2000); see also 20 C.F.R. § 655.731(c)(12).
In other words, the H-1B employee can pay the H-1B attorney fees if this
does not reduce his or her wage below the “required wage.”
Second, the H-1B petition is central to the H-1B worker. It is of significant
personal benefit. Not only is it important for employment with the H-1B employer,
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but it also provides other future benefits to the employee such as being exempt
from the H-1B cap when transferring to another employer and the ability to begin
working with a new employer under the “H-1B portability” rules when a new
employer files an H-1B petition for the nonimmigrant. 8 U.S.C. § 1184(n). It
allows a noncitizen and his or her family to live in the U.S. for many years.
Third, an H-1B petition is sometimes preferred by the worker in situations
where it is not required for the employer to retain that worker’s services; H-1B fees
and costs cannot reasonably be considered a business expense in those
circumstances. For example, a person with a pending I-485 Application for
Adjustment of Status (green card) can obtain an Employment Authorization
Document (“EAD”) to work. Unlike H-1B employment, the EAD does not come
with any restrictions on the work the noncitizen can perform or the pay. An H-1B
nonimmigrant with an EAD can choose to work based upon either the EAD or the
H-1B petition. Often the employee will want to maintain H-1B status to preserve
nonimmigrant status in case the I-485 Application is denied.15 Although the
employer must attest to the terms in the H-1B petition and sign the H-1B petition,
the H-1B petition is not necessary for the employment as the employer could
legally employ the beneficiary based upon the Employment Authorization
15
Working pursuant to an EAD could result in the noncitizen falling out of H-1B
status, although the noncitizen would still be lawfully present.
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Document. Thus, to characterize that H-1B petition as an employer “business
expense” in all circumstances is inaccurate.
3.
The DOL’s attorney’s fees regulation is counterproductive
to the protection of U.S. workers and H-1B nonimmigrants
As noted above, Amici believe that Congress spoke clearly in 8 U.S.C. §§
1182(c)(9)(A) and (12)(A) and that employers are only required to pay the fees
designated by these statutory provisions. The DOL’s attorney’s fees regulation
goes beyond the plain language of the statute.
Congress’s choice in limiting the fees imposed on an H-1B employer makes
sense from a policy perspective. The DOL’s ultra vires regulation does not. The
regulation does not further the goal of protecting the wages paid to U.S. workers.
An H-1B employer must pay an H-1B employee the “required wage,” which is the
greater of the “prevailing wage” or the “actual wage” paid to all employees with
similar experiences and qualifications. 20 C.F.R. § 655.731(a).16 In other words,
each pay period, the employer will be deducting from its account an amount equal
to or exceeding the wage that would be paid to a U.S. worker. If the H-1B
employee pays the attorney’s fees either directly or through a charge back to the
employer, the employer is still paying this same amount each pay period. For
16
Certain authorized deductions, including income tax or FICA withholding, union
dues, health insurance, and retirement fund contributions, can bring the wage
below the “required wage” without running afoul of the regulation. 20 C.F.R. §
655.731(c)(9)(i).
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example, if the H-1B employee reimburses the employer for the attorney’s fees,
the employer does not get a windfall that would encourage hiring foreign nationals
to the exclusion of U.S. workers because the employer will forward that
reimbursement to the attorney. While the H-1B worker’s take-home pay might be
less than a U.S. counterpart, the employer does not reap any financial advantage in
terms of a reduction in labor costs.
While both the employer and employee have much to lose in the process, the
employee has more at stake in human costs. An H-1B employee has an interest in
selecting the attorney who will represent the employer and employee in the H-1B
process.17 The employer, on the other hand, may have an interest in retaining a
less experienced or less skilled attorney, or forgo legal representation completely,
to save costs. If the employee does not want to cut corners on something of vital
importance to the employee, the employee should be free to retain and pay the
attorney of his or her choosing, so long as the employer consents to the
representation.
If this court determines that employers are responsible for payment of J-1
waiver fees and costs and the H-1B attorney’s fees and costs, employers may
17
While it is conceivable that the employer and employee would have separate
attorneys for this process, Amici have found that this is extremely rare in practice
because of the overlapping functions each attorney would perform and the costs of
having two attorneys do the same thing.
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attempt to complete this complex process without the benefit of counsel in an
effort to save costs. This could result in an increase in overall violations due to a
lack of proper legal advice. Furthermore, the risks of an employer’s decision to
proceed without counsel-while potentially inconvenient to the employer if it
resulted in the loss of the noncitizen’s services-would be most devastating to the
noncitizen, who could fall out of status or become unlawfully present through no
fault of her own. This could impact the availability of health care - especially to
medically underserved areas where J-1 waiver physicians are committed to work as well as the provision of urgently needed services provided by former J-1
exchange visitors working in H-1B status in other industry sectors, such as
education, medical and scientific research, social work, finance and computers.
CONCLUSION
This case has far-reaching implications for the tens of thousands of
employers, employees and attorneys involved in the J-1 waiver and H-1B process.
The district court’s expansion of the H-1B fee regulation to include J-1 waiver
attorney’s fees and costs has no support in law or fact and may have a deleterious
impact on the filing of J-1 waiver applications, as well as on the public health of
medically underserved U.S. citizens, inner city school children, and others who
rely upon the services of H-1B workers every day. We ask the Court to reverse
this aspect of the trial court’s holding in order to clarify that J-1 nonimmigrants are
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free to secure their own counsel when seeking an application for a J-1 waiver
pursuant to 8 U.S.C. § 1182(e). The very complex issues relating to the DOL’s
ultra vires H-1B fee regulation were not properly raised and addressed below and
we therefore request that the court decline to rule on that issue in this forum or that
it narrow its holding to the confines of the regulations relied upon by the District
Court below without commenting on the legality of regulation itself or its
application to facts not at issue in this case.
Respectfully submitted this 8th day of December 2011.
/s/ Russell Reid Abrutyn
RUSSELL REID ABRUTYN
3250 W. Big Beaver, Suite 529
Troy, MI 48084
Telephone: (248) 643-0642
Attorney for Amici
Jennifer Adele Minear
IMG Taskforce
1111 E. Main Street, Ste. 1500
Richmond, VA 23219
Telephone: (804) 775-3822
Deborah S. Smith
Law Office of Deborah S. Smith
7 West Sixth Avenue, Suite 4M
Helena, MT 59601
Telephone: (406) 457-5345
Gregory Siskind
IMG Taskforce
Siskind Susser, PC
1028 Oakhaven Road
Memphis, TN 38119
Telephone: (901) 682-6455
Scott D. Pollock
Scott D. Pollock & Associates, P.C.
105 W. Madison, Suite 2200
Chicago, IL 60602
Telephone: (312) 444-1940
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CERTIFICATE OF COMPLIANCE
I, Russell Reid Abrutyn, hereby state that, pursuant to FRAP 32(a)(7), Brief
of Amici Curiae contains no more than 5,105 words, as counted by the word
processing system used to prepare the Brief.
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CERTIFICATE OF SERVICE
I, Russell Reid Abrutyn, hereby certify that on December 8, 2011, the
foregoing document was served on all parties or their counsel of record through the
CM/ECF system if they are registered users or, if they are not, by placing a true
and correct copy in the United States mail, postage prepaid, to their address of
record.
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Appendix A
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AGENDA ITEMS FOR AILA DOS LIAISON MEETING WITH WAIVER REVIEW DIVISION October 18, 2011 Attendees for AILA Anastasia Tonello, DOS Committee Chair Marisa Casablanca, DOS Committee Vice Chair Jennifer Minear, DOS Committee Member Dan Berger, Health Care Committee Member Douglas Stump, AILA First Vice President AILA Staff Robert Deasy, Director of Liaison and Information Lynn M. Lee, Senior Liaison and Information Associate Attendees for DOS Vincent Beirne, Office of Legal Affairs, Acting Director Marcia Pryce, Waiver Review Division To begin, AILA wishes to thank the Waiver Review Division (WRD) for agreeing to this separate session to discuss issues of particular relevance to the processing of J‐1 waiver applications and advisory opinions. In addition, we would like to commend Marcia Pryce and others for their tremendous responsiveness in resolving specific case inquiries, including inquiries about advisory opinions and pending waiver requests that have exceeded normal processing times. This liaison process is mutually beneficial as it helps our members and, we hope, reduces the number of calls and faxes to you by allowing AILA to filter inquiries for you and pass along only those that merit attention. We very much look forward to building on this liaison relationship in discussing the following substantive items so that we can clarify these points for our members: General J‐1 Waiver‐Related Questions: Q1. Can the Waiver Review Division (WRD) please clarify its policy and procedures with regard to the following scenarios concerning withdrawal of a J‐1 waiver application? Q1(a). What procedure should a J‐1 waiver applicant follow in requesting withdrawal of a pending J‐1 waiver application? AILA InfoNet
InfoNet Doc.
Doc. No.
No. 11121235.
11102423. (Posted
AILA
(Posted 10/24/11)
12/12/11)
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A1(a). A waiver applicant who has a pending waiver application in the WRD should send an email to WRD via [email protected] to request withdrawal of a pending case. WRD updates the applicant’s case file and posts the withdrawal request on its online status checking system on http://travel.state.gov. Q1(b). In what manner is the successful withdrawal of a J‐1 waiver application communicated to the J‐1 applicant, the attorney of record, and/or the state Department of Health (if applicable) where the withdrawal is requested before WRD has issued its recommendation of the waiver? A1(b). A successful withdrawal is posted in the WRD’s online status checking system on http://travel.state.gov. The system posts the Request for Application Withdrawn, the date of the request, the type of waiver(Conrad, Hardship, IGA etc) request, the waiver case file number and the Department of State Decision: Withdrawn Per Request. Q1(c). How does WRD coordinate waiver withdrawal with USCIS where WRD is notified of the request for withdrawal after WRD has recommended the waiver to USCIS? A1(c). Once WRD makes a recommendation in a 212(e) waiver case and forwards its recommendation to DHS/USCIS, any further action on the case falls under the jurisdiction of USCIS. Therefore, if WRD has recommended the waiver to USCIS, the applicant/attorney should contact USCIS and request that the waiver be withdrawn. If WRD is notified by USCIS that a waiver application has been successfully withdrawn, WRD enters the withdrawal information in its database system, and this information is available to the applicant/attorney on our website. Q1(d). If a J‐1 exchange visitor wishes to withdraw a J‐1 waiver application for the purpose of extending her J‐1 stay, may the program sponsor issue a DS‐2019 upon obtaining confirmation that the DS‐3035 application has been withdrawn? What process should the program sponsor follow to obtain such confirmation? A1(d). The answer would most likely depend on the specifics of a situation and whether the individual has reached the maximum duration of program participation. Upon confirming that a waiver request has been withdrawn for a person who is within the maximum duration, a program sponsor may issue a DS‐2019. In general, when State’s Bureau of Educational and Cultural Affairs (ECA) receives a request for extension of program particular or a change in category (COC) for an individual who would appear subject to INA 212(e) AILA InfoNet
InfoNet Doc.
Doc. No.
No. 11121235.
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(Posted 10/24/11)
12/12/11)
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(if seeking H, L, K, IV, or LPR status), it asks WRD if the person has filed for a waiver. Record of a waiver filing would be an indicator of intent not to return home and fulfill the purpose of the Exchange Visitor Program (EVP) to which they committed on entry, and further suggest that the criteria for continued participation would not be met. There are exceptions. An example: The maximum duration for participation in the research scholar category is five years. A person gets a contract for three years and the program sponsor does not intend to extend the program. A U.S. employer files with USCIS a petition for H‐1B status for this person. Subsequent to petition filing, the EVP sponsor decides instead that it would like to keep this person on for two additional years, or the person finds a different EVP in which to participate. For extension beyond the maximum duration, ECA looks at the reason for the extension, contracts , financial support, and the relevant regulations. Q1(e). What is WRD’s procedure for restoring the Conrad number to the state Department of Health when a physician fails to commence a J‐1 waiver commitment, or withdraws his/her waiver application? A1(e). A state Department of Health that requests withdrawal of a pending Conrad waiver application, and restoration of the Conrad number may reuse the number if the state has not surpassed its allotted 30 Conrad waivers for the fiscal year. A successful withdrawal is recorded in our online status checking system and can be viewed by the applicant/attorney. Q1(f). Once a J‐1 waiver applicant has applied for and then withdrawn a J‐1 waiver application, may he apply again for another J‐1 waiver in the future? Does the answer vary depending on whether WRD had already recommended the waiver at the time of the withdrawal? A1(f). Yes, the applicant may apply for another waiver application in the future. If WRD has recommended the waiver and forwarded its recommendation to USCIS, the applicant should contact USCIS concerning the withdrawal request. However, if WRD has not made/sent its recommendation to USCIS, then the applicant should notify WRD to withdraw the application. We have addressed the procedure to do so in the response to 1(c). AILA InfoNet
InfoNet Doc.
Doc. No.
No. 11121235.
11102423. (Posted
AILA
(Posted 10/24/11)
12/12/11)
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Q1(g). If it is possible to apply again in the future, can/should the J‐1 exchange visitor use the same case number in applying for the second waiver as was used with the first application? A1(g). Yes. The exchange visitor should use the same case file number regardless of how many times he/she applies for a waiver or an advisory opinion. This ensures that applications for the exchange visitor are consolidated in one case file. Q2. AILA acknowledges that WRD has discussed its so‐called “One Waiver Per Customer” policy during prior liaison meetings. However, we believe that some issues are still lingering that merit more focused discussion. For example, will an exchange visitor who secures a J‐1 waiver and later becomes re‐subjected to §212(e) by virtue of participation in a new program be unable to obtain a second J‐1 waiver based upon that subsequent exchange visitor program? What about a situation where the J‐1 waiver is granted but later revoked by USCIS? Will WRD entertain a second waiver request in that instance? What about a situation where an exchange visitor has submitted multiple applications to request a waiver on alternative grounds (e.g., an IGA waiver and a hardship waiver)? It is our understanding that WRD will complete only one adjudication in this circumstance. Is that correct? If WRD will not agree to recommend more than one application, please explain which regulation or written policy, other than the regulation governing multiple IGA waivers for physicians, permits you to limit a foreign national to one adjudication, particularly in view of the fact that the applicant will have paid a separate filing fee for each application. If the separate fee is required, then it seems that a separate adjudication must be forthcoming. A2. An exchange visitor, previously granted a waiver, who subsequently participated in a new program that re‐subjected him/her to the INA 212(e) requirement may apply again for a waiver. In a situation where the J‐1 waiver is granted but later revoked by USCIS, WRD would not adjudicate another waiver for such applicant. If the exchange visitor submits multiple waiver applications, the WRD adjudicates the first application that is complete (meaning all required documents are in the file) and ready for adjudication. We stand by our long‐standing policy of adjudicating one favorable waiver application per applicant. Since a favorable waiver recommendation nullifies the 212(e) requirement, it is not necessary to adjudicate another waiver case for the same applicant. However, if the applicant receives an unfavorable waiver recommendation, WRD will consider adjudicating another waiver application on his/her behalf and forward its recommendation to USCIS. The AILA InfoNet
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No. 11121235.
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Filed: 12/08/2011
Page: 42
waiver processing fee is non‐refundable, and this is clearly stated on our website, http://www.travel.state.gov/visa/temp/info/info_1296.html. Q3. Where an exchange visitor is initially admitted as a J‐1 and then changes status to J‐2 (or vice versa), can WRD please confirm our understanding that that a single waiver of INA §212(e) may be granted to cover time spent both in J‐1 status and in J‐2 status? A3. If the J‐1 exchange visitor receives a waiver of the two‐year home residence requirement, the waiver will cover the J‐2 derivative. However, if the J‐2 changes status to principal J‐1 exchange visitor and is subject independently to 212(e) based on his/her J‐1 exchange program activity, a separate waiver is required to cover that J program. Q4. How long does WRD maintain an inactive application or case number in its system? For example, if a J‐1 waiver applicant submits a DS‐3035 form but never provides the additional supporting documentation WRD needs to complete adjudication of the waiver request, may the J‐1 waiver applicant resuscitate that application years later by providing the supporting documentation? Under what circumstances or after what length of time would a new DS‐3035 and filing fee be required? A4. Our current process is that our inactive files are close after two years, but the applicant can reactivate the case by submitting any new or relevant documents, with no new fee required. However, we’re reviewing the current process and it is subject to change. Q5. Members have reported increased delays in the processing of J‐1 waiver applications, particularly with regard to IGA waiver requests, in recent months. The DOS website now lists “normal” processing at 4‐8 weeks for IGA waivers. Adding to the problem is that the Department of State’s online case status information for DS‐3035 processing is often not updated for up to 4 weeks following receipt of documentation. Can WRD confirm that the “normal” processing time for an IGA waiver commences on the date that WRD actually receives the recommendation letter from the IGA rather than the date that receipt is updated on the Department of State’s website? Can WRD confirm that, going forward, it will enter the date on its website that the IGA recommendation was actually received, rather than the date that the information was updated on the website so as to better enable applicants to track the actual processing time at WRD? Finally, can WRD comment on what steps might be undertaken to decrease processing time for IGA waiver requests? A5. Our records do not reflect increased delays in processing Interested Government Agency (IGA) waivers in recent months. As indicated on our website, the four to eight week processing time line for IGA waivers is an estimate only, as some AILA InfoNet
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No. 11121235.
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cases require additional processing and may take longer to adjudicate. Cases that have all the required documentation are processed within the estimated processing timeline. The online status checking system is updated on a daily basis. The date that the document was entered into the system will remain the received date. While mail is accepted at the DOS, this mail must be scanned and processed for safety and security purposes. This can take a few days before it winds its way through the system to WRD. The WRD enters documents in the system within three days of receiving them in the office. Q6. For a period of years now, there has been a recurring issue with regard to WRD sending USCIS the incorrect name for the attorney of record associated with a particular DS‐
3035 form when notifying USCIS of its recommendation of a J‐1 waiver application. Prior discussions with WRD and USCIS seem to have revealed that the issue lies with WRD selecting the wrong attorney’s name from the drop‐down menu associated with the attorney’s firm. Specifically, it appears that when WRD clicks on the name of the firm, a drop down menu lists all attorneys associated with that firm who have previously been listed as the attorney of record on a DS‐3035 application. Rather than scrolling through the menu to select the name of the attorney whose name appears on the particular form, it would seem (based on our own anecdotal research – see attached chart) that the WRD official is simply choosing the first attorney’s name that appears alphabetically on the drop down menu. Often, the attorney listed is no longer with the firm or is located in another office of the firm, perhaps in a different city or state, from the attorney who is actually listed on the DS‐3035. This, in turn, creates confusion when the subsequent USCIS receipt and approval notices for the J‐1 waiver are mailed to the wrong attorney. We ask that WRD please re‐double its efforts to ensure that the correct attorney’s name is provided to USCIS when transmitting the waiver recommendation. A6. Standard procedure is for the WRD to forward to USCIS the name of the attorney on the G‐28. We will make sure that the staff follow this procedure. It would be useful to us if the law firm provides us with an updated list of the members of the firm handling 212(e) waiver cases. Q7. On a related note, can WRD provide clarification on exactly what information is sent to USCIS when WRD favorably recommends a J‐1 waiver application? The DS‐3035? Supporting documentation? A7. For no objection statements, interested government agency and state department of health applications, the WRD sends the waiver recommendation letter, DS‐3035 and G‐28 information to USCIS. For the exceptional hardship and persecution cases, we also send the I‐612 and I‐613 forms to USCIS. AILA InfoNet
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No. 11121235.
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AILA
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Case: 11-6120
Document: 006111151138
Filed: 12/08/2011
Page: 44
Q8. INA §212(e) states that no person subject to the two year home residency requirement attaching to J‐1 status "shall be eligible to apply for an immigrant visa or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or 101(a)(15)(L) until it is established that such person has resided and been physically present in the country of his nationality *or* his last residence for an aggregate of at least two years following departure from the United States." (emphasis added). Yet, the FAM purports to limit that choice by stating: If the exchange visitor's country of nationality differs from his or her country of legal permanent residence, then he or she is required to return to the country of his or her legal permanent residence at the time the J‐1 visa was issued or J status obtained. 9 FAM 40.202 N1. In prior AILA liaison meetings, DOS has stated that it believes this interpretation is consistent with the policy considerations of the exchange visitor program. However, this interpretation does appear to contradict the plain meaning of the statute itself. Can WRD please discuss the *legal* basis for its position on this issue? A8. Our interpretation of this provision in INA 212(e) and the definition of “exchange visitor’s government” in 22 CFR 62.2 is reflected in the 9 FAM note you have cited. The intent and purpose of the Mutual Educational and Cultural Exchange Act is to exchange persons and ideas and to build mutual understanding among peoples and cultures. Accordingly, exchange visitors are permitted to pursue a program objective and, upon completion of that objective, are required to return to their home country to use their newly acquired skills and knowledge. If an exchange visitor is living as a legal permanent residence in a country other than the country of nationality prior to EVP participation, he or she would be expected to return to the country of legal permanent residence upon program completion. Q9. Can WRD please provide information and clarification regarding the procedure it follows when seeking input from a program sponsor with regard to a no objection waiver, Interested Government Agency, or hardship‐based waiver? In particular, please confirm what information from the underlying waiver application is provided to the program sponsor. Members report that, in at least some cases, the program sponsor appears not to have received copies of all documentation bearing on hardship‐based J‐1 waiver requests. In such cases, where the totality of all circumstances must be evaluated in order to reach an informed decision, we ask that the program sponsor be given a complete copy of all documentation in the J‐1 waiver file. To this end, would it be helpful for AILA to ask its members to forward WRD a duplicate copy of all materials it wishes WRD to pass along to a program sponsor? A9. WRD forwards a complete copy of all documents in the applicant’s case file to the program sponsor for review when requesting sponsor views. This has always AILA InfoNet
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been our procedure and it has not changed. For this reason, it is not necessary for AILA members to send duplicates of the material. Q10. Can WRD explain the triggering criteria for contacting a program sponsor in the context of a J‐1 waiver request? Must the exchange visitor’s program have been directly funded by the program sponsor in order to merit that sponsor’s input regarding the merits of the waiver request? Or, is an opinion solicited from every program that provided funding, no matter how small the amount? A member reports that WRD appears to contact one particular program sponsor (IIE) to solicit its views on the merits of no objection waiver requests even when the sponsor provided no direct funding, yet does not do this with regard to other program sponsors. A10. An opinion is solicited from all U.S. Government sponsors that provide funding for the program regardless of the amount of funds invested in the exchange visitor’s program. WRD contacts program sponsors to find out whether or not U.S. Government funds were provided to the exchange visitor. If no government funds were involved in the program, the sponsor informs the WRD of that. If government funds were involved, the sponsor sends its views concerning the waiver request to WRD. Q11. Please provide further guidance on the best way to notify WRD of errors, amendments or corrections that the applicant needs to make to the DS‐3035 form after it has been submitted electronically. Previously, WRD has indicated that such changes should be sent to WRD so that the information can be added to the database. Does this mean that the applicant should send the information directly to WRD in Washington? Or, should such changes be sent to the St. Louis Post Office box location? Will there be an acknowledgement by WRD that the information has been received and processed? Some applicants may have concerns about information actually reaching the file. A11. Yes, any corrections or amendments to the DS‐3035 form after it has been submitted should be sent directly to WRD in Washington, D.C. Similarly, any documents relating to the case should be sent directly to the WRD in Washington, D.C. Minor corrections to the DS‐3035 form, such as DOB, can be sent via e‐mail to [email protected]. Documents such as support letters, should be mailed to the WRD at the address below. Please be sure to put the applicant’s waiver case file number on the document. The WRD will update the applicant’s case file. The applicant can track the case on our website or contact the Public Inquiries Division at 202‐663‐1225 for assistance. Department of State Waiver Review Division AILA InfoNet
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Bureau of Consular Affairs Visa Services SA‐ 1, CA/VO/L/W Room L 603 Washington, DC 20522‐0106 Q12. What about a situation where an exchange visitor is issued a new DS‐2019 form after having submitted the DS‐3035? What is the best way to ensure that the new DS‐2019 is also covered by the J‐1 waiver application? Will the waiver automatically cover all DS‐
2019s related to the program that is the subject of the waiver application, even if not all DS‐2019s are listed on the DS‐3035? Q12. The WRD reviews all DS‐2019 forms issued to the applicant for participation in the exchange program. If a DS‐2019 form is issued to the applicant during the waiver process, the applicant should fax a copy of the new form to WRD (fax number: 202‐663‐2868) as soon as possible so that it will be included in the waiver application. If the applicant is subject under the new DS‐2019 and a recommendation has been made on the previous DS 2019 the applicant is still subject to 212(e) and requires another waiver. Q13. On a related note, does WRD anticipate a time in the future when it might be possible to save a DS‐3035 application in draft form in order to make corrections/additions before or after it is submitted? Q13. Yes, in the future you will be able to save the DS 3035 and make changes prior to submitting the form. Q14. WRD has stated in prior liaison meetings that it will not consider providing a more expansive and case‐specific rationale when denying a J‐1 waiver application due to “program, policy and foreign relations considerations.” However, we hope to discuss this important issue in more depth during this smaller, break‐out session with WRD. While we understand and appreciate WRD’s position that it may not be legally required to provide more information to visa applicants beyond a recitation of “program, policy and foreign relations considerations,” there would seem to be a number of reasons why it might make sense to do so. In particular, we note that, while case law allows DOS discretion in waiver decisions where internal DOS policies have been followed, it appears these policies are not always followed, and we are aware of several court challenges and media articles on this subject being developed over the past few months. We believe that this kind of negative scrutiny on an important program could be avoided through some additional discussion and information‐sharing between WRD and waiver applicants. Particularly if WRD persists in its refusal to provide a more AILA InfoNet
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substantive explanation for its denial of waiver applications on program, policy, and foreign relations grounds, it would appear that the limited number of cases that are of concern could be flagged through our liaison vetting process with a respectful request for reconsideration or review by the Waiver Review Board. We respectfully ask that WRD consider permitting this type of limited review of its decisions in view of the often devastating impact that a waiver denial has upon the waiver applicant and his family members, so that applicants will have greater reassurance that their applications were fully vetted, and all factors thoroughly considered. Q14. The WRD believes that it is not appropriate to comment on the program, policy and foreign relation considerations relevant to specific waiver cases. Each application is reviewed on a case‐by‐case basis and weighed on its individual merits. All relevant factors in the case are considered in the review process. The only DOS policies or standards followed in determining a waiver are to weigh the program, policy and foreign relations considerations. Particularized explanations for denial are not required or appropriate. These factors apply across the board in INA 212(e) waiver cases. The courts have consistently supported our position in this respect. We respectfully decline AILA’s request to permit reconsideration of a number of cases by the Waiver Review Board. The WRD continues to refer cases to the Board at the discretion of the Chief of the Division as stipulated in 22 CFR 41.63 (g) (4). J‐1 Physician‐Related Questions: Q15. The Department of State has long recognized a J‐1 waiver applicant’s right to legal counsel and provides the applicant an opportunity for the applicant to designate an attorney on both the DS‐3035 application form itself and by presenting a G‐28. Can the Waiver Review Division confirm that the J‐1 waiver sponsor for an IGA waiver under INA 214(l) (i.e., the entity for whom the J‐1 physician will work in service of the 3 year J‐1 waiver commitment once the waiver is granted) need not be represented by counsel during the J‐1 waiver process? Would WRD even recognize a G‐28 signed by a J‐1 waiver sponsoring employer, since the J‐1 waiver application (DS‐3035) is specific to the applicant? Q15. A J‐1 waiver sponsor for an IGA physician need not be represented by counsel during the J‐1 waiver process. WRD would not recognize a G‐28 signed by a sponsoring employer, since the J‐1 waiver application is specific to the applicant. Q16. We understand from prior liaison meetings that WRD has been working on a “data fix” that would enable it to include more complete information regarding the proposed AILA InfoNet
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Page: 48
worksites and employer sponsor for a J‐1 physician seeking a waiver pursuant to INA §214(l). Can WRD provide an update at this time on the status of that data fix? If such a data change is not possible or still underway, would WRD consider taking the following steps to eliminate confusion at the H‐1B phase: (1) change the sentence “this approval is valid for employment by _______ [name of facility where employment will occur]” to “this approval is valid for employment at ________[name of facility where employment will occur].” This would hopefully at least eliminate the confusion relating to whether the facility at which the physician will be employed must be the H‐1B petitioner; and (2) forward a copy of the state Department of Health (or federal IGA) recommendation letter to USCIS along with WRD’s recommendation letter. Hopefully, the IGA’s recommendation letter will contain further clarification as to any distinction between the name of the employing entity and the facility at which the physician will be employed, as well as a list of all worksites included within the recommendation. USCIS could then draw upon the data in both the WRD recommendation letter and the IGA letter when issuing the I‐797 approval notice and addendum. Q16. The Computer Systems and Technology Division is still working on a data fix that will allow the WRD to include more than one worksite and employer sponsors on the IGA physician and Conrad waiver recommendation letters. In the interim, we encourage you to submit a copy of the facility letter from the state department of health with the H‐1B petition because the facility letter contains detailed information on all of the facilities with which the doctor will be affiliated. It is our understanding that this type of letter is supplied by several of your colleagues and USCIS has found that acceptable. We will consider your suggestion to modify the IGA physician recommendation letter. Advisory Opinion‐Related Questions: Q17. In prior liaison meetings, WRD has confirmed that it reviews an exchange visitor’s entire J‐1 history and then advises whether the individual is subject to INA §212(e) based on government funding or the Skills List. Will WRD consider issuing Advisory Opinions for specific J‐1 programs, instead of an all encompassing opinion for the applicant that merely notes the basis for a finding (funding or Skills List) without specifying which program? For instance, if the J‐1 waiver applicant participated in two Exchange Visitor programs and an advisory opinion request was submitted with the IAP‐66 and/or DS‐
2019 forms from both programs, but there is the possibility that the applicant is only subject to 212(e) based on one, not both, programs, can the AO unit clarify which program made the applicant subject to 212(e)? This is particularly relevant where, for example, the J‐1 may have returned home for two years between programs and is only subject to 212(e) based on the first program. AILA InfoNet
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No. 11121235.
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Page: 49
Q17. Advisory opinions cover an alien’s entire J‐1 history, and are not broken into selective periods of time. Posts and DHS offices use advisory opinions to aide their own case reviews. Letters that single out a portion of an alien’s program history would confuse and mislead officers. If an alien should fulfill his/her residency requirement and change his/her field of study/work, the officer would determine whether or not a new waiver is required. In instances where they are not sure, officers do contact the WRD for clarification. An Exchange Visitor’s program activity generally remains within the same subject area. If an alien changes his/her course of study or changes his/her career path, it would be evident which code subjected the visitor, since it is listed in the advisory opinion letter. The exchange visitor knows his/her own subject area, and is aware of government funding which was awarded. Program reporting is inconsistent, so it is not feasible to split an advisory into separate periods of time, and still render an accurate advisory opinion. No‐Objection‐Related Questions: Q18. What is WRD’s preferred method for a J‐1 waiver applicant to provide WRD with copies of supporting documentation that the applicant feels should be reviewed by WRD when making a decision on a No Objection case? If the applicant provides materials to the home country’s Embassy, will these necessarily be forwarded to WRD along with the Embassy’s letter of No Objection? Q18. The applicant should write the waiver case file number on the documents and mail them to WRD at the address above. We cannot speak for the applicant’s home country government. The applicant should contact his/her Embassy to find out if the Embassy will agree to forward supporting documents along with the letter of no objection statement to WRD. 12
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