The Limits Of Discretion

Thursday, March 22, 2012 - 17:02

In a unanimous decision earlier this year, the U.S. Supreme Court saw fit to criticize the Department of Homeland Security for overreliance on the discretion of individual officers in deportation proceedings.  In Judulang v. Holder, the Court strongly admonished the agency, finding that allowing immigration cases to hang on “the fortuity of an individual officer’s decision” turns “the rational operation of immigration laws” into a “sport of chance” filled with unpredictability, uncertainty and inconsistency.

In my January 2012 Metropolitan Corporate Counsel column, I urged U.S. Citizenship and Immigration Services to get the message of Judulang as regards business immigration programs. But just a few short months after the Supreme Court’s decision – and just a few weeks before employers begin to file H-1B petitions for professional employment in FY 2013 – USCIS has once again aggressively asserted that its adjudicators have broad discretion to make subjective determinations whether businesses have met the standard for the H-1B program, as it has with several other critical immigration programs for businesses.

USCIS’s renewed insistence on the broad discretion of adjudicators came in a quietly updated FAQ document on a key issue with respect to the H-1B program – the ability to place H-1B workers at the worksites of clients. Offsite placements are a critical element of the business model in many service industries in the United States, including consulting and information technology. But for the last several years, USCIS has looked at them with skepticism, concerned that H-1B petitioners placing workers at client sites might actually be functioning as “job shops” to supplant domestic workers with foreign labor.

To address this perceived problem, USCIS has since 2010 required H-1B petitioners to show that they will have an employer-employee relationship with an H-1B beneficiary. This requirement is very strictly applied to consulting companies, staffing organizations and other employers who place employees at the worksites of their clients. These organizations are asked to provide extensive evidence that they, and not their clients, will have the right to control an H-1B beneficiary’s work. The requirement has also had a negative impact on cases in which the H-1B beneficiary has an ownership interest in the petitioning company – such as majority shareholders or CEOs.  The result has been a high rate of petition denials that have deprived organizations of much-needed talent.

The new FAQ purports to broaden the types of evidence that USCIS will consider when examining the employer-employee relationship and seems to liberalize some of the stringent evidentiary requirements that agency adjudicators have imposed on petitioners. But in actuality, the FAQ reposes ultimate authority in the adjudicator, who, the agency asserts, can make a subjective determination whether the evidence submitted establishes the ultimate relationship. Though a petitioner may submit copious evidence that it meets each legal requirement for an immigration benefit, the agency maintains that an adjudicator can nevertheless make a final subjective determination that the evidence in total fails to establish eligibility.

This is not the first time that USCIS has added an extra discretionary layer of analysis. In the green card context, USCIS takes the position that applicants for permanent residence as aliens of extraordinary ability are subject to a similar two-step analysis. First, applicants must meet each objective requirement of the immigration regulations. But according to USCIS, this is not enough. The agency empowers adjudicators to then step back and decide, subjectively, whether the evidence in total demonstrates that a beneficiary is indeed extraordinary. Similarly, when adjudicating petitions filed on behalf of specialized knowledge workers being transferred to the U.S. from an overseas affiliate, USCIS asks petitioners to demonstrate that beneficiaries possess extraregulatory “super-special” qualities.

It is difficult to discern how these broad exercises of discretion could be permissible post-Judulang. But as restrictionists in Congress and some vocal members of the public continue to pressure USCIS to limit immigration benefits, the agency has increased its use of the shield of individual officer discretion. The result is an increase in the unpredictability and irrationality of immigration adjudications, precisely the outcome that Judulang so roundly criticized and that the White House, in its effort to spur foreign investment and entrepreneurship, must endeavor to curtail. As our economy slowly recovers and our country seeks to increase its international competitiveness, consistency, fairness, and predictability in adjudication of employment-based immigration benefits applications has never been more crucial.

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.comNancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.