+1 212 318 2000
Europe, Middle East, & Africa
+44 20 7330 7500
+65 6212 1000
Lee v. Holder, 2d Cir., No. 12-10, 12/3/12
A Malaysian citizen who overstayed his visitor visa cannot adjust his immigration status to that of a lawful permanent resident because he was not a beneficiary of a labor certification application filed by an April 2001 deadline, the U.S. Court of Appeals for the Second Circuit held Dec. 3 (Lee v. Holder, 2d Cir., No. 12-10, 12/3/12).
Although individuals unlawfully present in the United States generally are ineligible to change their immigration status, the Second Circuit observed that the Immigration and Nationality Act establishes a “grandfathering” exception for beneficiaries of labor certification applications filed by April 30, 2001.
The U.S. attorney general issued regulations interpreting that statutory provision (8 C.F.R. § 245.10(j); 8 C.F.R.§ 1245.10(j)) as excluding “an alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001.”
In submitting an employment-based immigrant visa petition on behalf of Kar Onn Lee, Penang Malysian Cuisine in February 2007 substituted Lee as the beneficiary of a labor certification application it filed for a chef position in January 2001. Lee then filed a status adjustment application.
Affording Chevron deference to the attorney general's regulations, the Second Circuit found that an immigration judge and the Board of Immigration Appeals properly denied Lee's status adjustment because he was not named as a substitute beneficiary on the labor certification application before April 30, 2001.
Judge Jose A. Cabranes wrote the opinion, joined by Judges Pierre N. Leval and Robert D. Sack.
In 2001, Penang filed a labor certification application with the Labor Department for a chef position, naming Ji Fa Cao as the beneficiary. The restaurant eventually filed an I-140 “Immigration Petition for Alien Worker” with U.S. Citizenship and Immigration Services for an immigrant visa on behalf of Lee so that he could become a lawful permanent resident.
Penang in February 2007 replaced Cao with Lee as the beneficiary of the January 2001 labor certification application. Lee submitted to USCIS an application to adjust his status in March 2007.
Although USCIS approved the I-140 petition in July 2007, it denied Lee's status adjustment application in August 2008. It determined that he was not eligible to become a permanent resident based on Penang's labor certification. The agency denied Lee's motion for reconsideration.
USCIS in July 2009 began removal proceedings against Lee. Before an immigration judge, Lee renewed his status adjustment application, arguing that since he was the current beneficiary of a labor certification application filed before April 30, 2001, he was a “grandfathered” alien within the meaning of the INA and could adjust his status.
The judge denied Lee's application, BIA affirmed, and Lee petitioned for review in federal court.
The attorney general in March 2001 issued an interim rule, codified at 8 C.F.R. § 245.10(j), stating that “[a]n alien who was substituted for the previous beneficiary of [an] application for … labor certification after April 30, 2001, will not be considered to be a grandfathered alien.”
The appeals court said the U.S. Supreme Court has held that courts must defer to the attorney general's interpretation of the INA, pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 847 (1984).
Even when Congress amended the statute via the Homeland Security Act of 2002, which created the Department of Homeland Security, the INA still provided that the “determination and ruling by the Attorney General with respect to all questions of law shall be controlling,” the court said.
The attorney general duplicated the text of 8 C.F.R. § 245.10 into a final rule at 8 C.F.R. § 1245.10.
The court determined that the issue in Lee's appeal--whether the INA confers “grandfathered” status “on certain beneficiaries or certain applications”--is “plainly within the scope of the Attorney General's authority to interpret federal immigration law.”
It rejected Lee's argument that the Labor Department, and not the attorney general, is responsible for determining which individuals are permissible beneficiaries of labor certifications.
The court said Lee conflates the issues of who can be named as substitute beneficiaries on labor certification applications and who is eligible for immigration status adjustments.
The court pointed out that “beneficiary” could have three meanings: initial beneficiaries only; initial beneficiaries and their substitutes, as long as the substitutions occurred before April 30, 2001; or “currently named beneficiaries, whether original or substituted, regardless of when the substitution occurred.”
Where a statute's language is ambiguous in regard to an issue, the court said Chevron directs it to consider whether a federal agency's interpretation “is based on a permissible construction of the statute.”
Here, the court concluded that the attorney general's rules interpreting the grandfathering provision were reasonable and not “arbitrary, capricious, or manifestly contrary” to the INA.
It agreed with the Fourth Circuit that Congress intended the provision to “be temporary and apply only to a discrete group of aliens whose applications were pending” on April 30, 2001.
“That intent would be frustrated if an alien substituted many years later as the beneficiary of an application for labor certification could nonetheless take advantage of the expired provision for adjustment of status,” the court said, quoting the Fourth Circuit. “The absence of a manifestly unreasonable interpretation of the statute is sufficient to sustain the regulation.”
John L. Moncrief of New York represented Lee. Justice Department attorneys Rebecca Hoffberg Phillips, William C. Peachey, and Stuart F. Delerey represented the attorney general.
By Jay-Anne B. Casuga
Text of the opinion is available at /uploadedFiles/Content/News/Legal_and_Business/Bloomberg_Law/Legal_Reports/Labor-Certification(1).pdf.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).