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Court Denies Status Adjustment for Worker Substituted on Labor Certification Too Late

Friday, December 21, 2012
Lee v. Holder, 2d Cir., No. 12-10, 12/3/12

  • Key Holding: Nonimmigrant cannot adjust status because he was not beneficiary of labor certification application filed before April 30, 2001.

  • Key Takeaway: Individuals unlawfully present in United States who are substituted as labor certification application beneficiaries after April 30, 2001, cannot take advantage of exception that would allow them to become permanent residents.


By Jay-Anne B. Casuga

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.


Labor Certification Application Filed in 2001
According to the court, Lee obtained a nonimmigrant visitor visa and legally entered the United States in 2000. He did not leave the country when the visa expired, making his continued presence unlawful.

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.


Attorney General's Authority Over Law at Issue
In denying the petition, the Second Circuit explained that the INA (8 U.S.C. § 1255(i)(1)(B)(ii)) provides that individuals who are unlawfully present in the United States may adjust their immigration status as “grandfathered” aliens if they were the beneficiaries of labor certification applications filed before April 30, 2001.

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.


Court Finds AG's Interpretation Reasonable
Applying Chevron principles to the instant case, the Second Circuit found that the plain language of the INA grandfathering section at issue is ambiguous as to the meaning of the term, “beneficiary.”

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.

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