As part of our efforts to amplify AILA Law Reviewauthor Martin Robles-Avila gives us a preview of his article in the new issue AILA Law Journal Fall 2023 Edition entitled “No Fault/Technical Reasons: A Postmortem on Flawed Rulemaking and Its Effect on Nonimmigrant Status Breaches” in which he discusses the dilemma that business immigration practitioners often face in determining whether a client is eligible for a status adjustment. Members of AILA, read editor-in-chief Cyrus Mehta’s preview here then access your free digital copy of the Law Journal to know more !
A preponderance of evidence suggests that most readers of this release will not also read my AILA Law Journal article, No fault/technical reasons: so, I will tempt you with an abbreviated version. Let’s start with a classic dilemma that every business immigration practitioner inevitably faces: your client has a pending asylum application, an Employment Authorization Document (EAD), and an approved I-140: is he eligible for adjustment of status? They (probably) did not maintain their nonimmigrant status and asylum applications are pending forever; but is it their mistakeor for a technical reason? If you are an AILA member, you may have even posted your question on one of the mailing lists and, in response, received a chorus of Delphic responses, including a few vexing “follow-ups”, all confirming your confusion and your concern.
A little context for the uninitiated or confused. Establishing eligibility for adjustment is not as simple as proving that a person has been “inspected and admitted or released on parole” with an “immediately available” visa. INA § 245(a). This is in part because a separate paragraph, Section 245(c), identifies eight categories of noncitizens who, despite the permissiveness of Section 245(a), do not have the right to ‘adapt. For our purposes, (c)(2) covers the vast majority of employment-related sins: unauthorized employment; be in “illegal immigration status” at the time of application; and the inability to maintain “continuously legal status since” his entry into the United States – and this prepositional phrase is the protagonist of our plot – “(except through no fault of his own or for technical reasons)”. And that is precisely how it is stated in the text, as a “parenthetical exculpatory clause” (Attias v. Crandall, 968 F.3d 931, 937 (9th Cir. 2020).)
But what does that mean exactly? “(No) fault of (their) own” sounds pretty expansive, doesn’t it? And “technical reasons” could include all sorts of non-substantive violations too trivial to prevent a non-citizen from adjusting. Like, for example, filing for asylum while having valid nonimmigrant status, but losing that status because USCIS processing times are endless. The regulations happen to define the exculpatory clause, limiting it to four specific instances, one of which is so specific as to be generally unavailable: 8 CFR §245.1(d)(2)(iv) refers to “violations technicalities resulting from the Service’s application of the five/six year maximum stay period for certain H-1 nurses only if the applicant was subsequently reinstated to H-1 status pursuant to the terms of Public Law 101-656 (Amendments on immigration of 1988). This leaves only three examples which ostensibly cover the whole of what is meant by “no fault of the plaintiff or for technical reasons”. I examine these 3 reasons in depth in my law review article.
After repeatedly going through the exercise of consulting (and re-consulting) both the exculpatory clause and its implementing regulations, I was struck by a feeling of disconnect. This article outlines the legislative and regulatory history, showing that not only are the regulations drafted too narrowly given the length of the statutory text; but perhaps more importantly, they are the illegitimate children of a flawed rule-making process.
Reading the sepia-toned congressional documents, I learned a few intriguing things: First, when the exculpatory clause first appeared in the Immigration Reform and Control Act of 1986 (IRCA), its original text read: (other than through no fault of its own for technical reasons)”. Notice the little missing word? It wasn’t until two years later, in the Immigration Technical Corrections Act of 1988, that Congress added the conjunction “or” to the phrase, upgrading it to its current iteration. But before this amendment, on March 3, 1987, the old INS had already initiated rulemaking regarding the previous version of the law – issuing an interim rule to define the phrase “unless through no fault of its own.” for technical reasons. without the intermediate conjunction.
If you think that adding the conjunction “or” between “other than through no fault of its own” and “technical reasons” is not meaningful, we’ll just have to part ways. As Justice Gorsuch recently observed, “At one level, today’s dispute may seem semantic, centered on a single word, no matter how small. But words are the way law constrains power” (Niz-Chavez v. Garland, 141 S.Ct. 1474, 1486 (2021).) Or as Scalia and Garner wrote about conjunctions, “(s)ometimes huge sums of money can depend on these little words” (Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, p. 117 (2012).
This shortcoming is all the more glaring when we consider that, despite the start of rule development in March 1987 – and the actual text of the law being implemented and subject to significant amendment in 1988 – the INS never issued a correction. Although he made a correction to the interim rule on April 27, 1987, he did so only to correct a statutory citation (from “243(h)” to “243(h) (2”). Why did he ‘Would INS issue a correction making this innocuous change, but not on something as critical as an amendment to the same statutory text currently being applied? And it wasn’t until July 12, 1989 that the INS issued the final rule, plenty of time to issue a correction. I was also stunned to learn that the interim rule only generated five comments – speak of a bygone era.
So the next time you’re faced with a conundrum involving whether failure to maintain status is due to “no fault” of the applicant or for a “technical reason” and you’re discouraged by regulations, keep this history handy. mind when developing your legal arguments. . And if that doesn’t inspire you to read the full version, we’ll just have to pretend to be friends at the next conference.