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IMMIGRATION MARCH 15, 2024 | The Indian Eye 43

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But at a minimum, even if it is ambiguous possible for noncitizen plaintiffs to attack the denial of an I-485 application to chal- reading of INA §212(a)(5) does not in any
on the point, the statute may reasonably other rules more than six years after they lenge the rule even today, and the elimi- way suggest that an employer must seek
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be understood as the Department has were issued. For instance, 8 CFR 245.1(d) nation of Chevron deference may allow a to recruit U.S. workers in order for the
read it in support of the 2016 OPT Rule. (2)(i) implements the technical exception court to hold that the regulation does not Secretary of Labor to certify that there is a
That interpretation thus merits our defer- under INA 245(c)(2), which precludes faithfully interpret the exception in INA lack of U.S. workers who are qualified and
ence. Chevron, U.S.A., Inc. v. Nat. Res. one to file an I-485 application for adjust- 245(c) without regard to whether the gov- willing at the time of the application. Al-
Def. Council, 467 U.S. 837, 104 S.Ct. 2778, ment of status who has failed to maintain ernment’s interpretation of the statute is though the PERM rule was promulgated
81 L.Ed.2d 694 (1984). lawful status “other than through no fault reasonable or not. One caveat is that the in 2005, Corner Post can extend the 6 year
of his own or for technical reasons.” 8 plaintiff may have to get over the jurisdic- limitation if an employer was subject to in-
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Id. at 192. CFR 245.1(d)(2)(i) provides a very nar- tional bar as set forth in Patel v. Garland jury in the last six years. Moreover, if Chev-
At oral argument in Corner Post the row reading of the exception under INA when seeking judicial review of a denied ron has been eliminated a court may not
justices questioned what impact it may 245(c)(2) by only allowing one whose I-485 application. give deference to the DOL’s interpretation
have if parties were allowed to bring facial status was jeopardized due to inaction by Corner Post along with the elimi- of INA § 212(a)(5) as set forth in 20 CFR
challenges more than six years after a fi- the government or by an organization or nation of Chevron deference can open 656, which requires onerous recruitment
nal agency action. Justice Jackson asked individual authorized to act on behalf of up other possibilities. It may be possible steps including two Sunday print ads and
whether this could risk destabilizing in- he individual such as a designated student for a plaintiff to challenge the regulation which requires employers to justify sup-
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dustry and noted that “we have settled officer in a school. The Ninth Circuit in implementing the foreign labor certifi- posedly restrictive requirements through
rules that govern all sorts of industries, Peters v. Barr recently held that the reg- cation program at 20 CFR 656. Under business necessity among many other
the healthcare industry, the finance indus- ulation should cover situations where the INA §212(a)(5), an alien is deemed “in- burdens that have no bearing with an em-
try, and people have adjusted themselves applicant fell out of status due to ineffec- admissible unless the Secretary of Labor” ployer’s real world recruitment practices.
around them.” It appears that the jus- tive assistance of counsel but did not in- certifies, inter alia, that “there are not suf- There will be both winners and los-
tices know that Chevron deference is on validate the regulation. Although the rule ficient workers who are able, willing, qual- ers in a post Chevron world if the plain-
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the chopping block, and perhaps there is was promulgated in 1989, Corner Post ified…and available at the time of applica- tiffs are victorious in Corner Post, Loper
already a draft opinion circulating among could allow one who got injured through tion” among the U.S. workforce. A plain Bright and Relentless.
them suggesting that Chevron deference _________________________________________________________________________________________________________
may be no more. In an exchange with
counsel for Corner Post, Justice Jackson Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
raised the potential impact of the rulings Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
in Corner Post, Relentless, and Loper mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
Bright. Justice Elena Kagan also raised Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of
the risk of retroactive impacts scrambling Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board
long-established law. If plaintiffs prevail of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the
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in Corner Post, it would open up challeng- New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and
es to well settled immigration rules such as is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta
the F-1 OPT and STEM OPT rule, as well received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
as the H-4 employment authorization rule,
which can destabilize and upend the lives Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has
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of real people rather than just industries. also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded
While we have addressed how the F-1 lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
OPT rule might be vulnerable, it may be Chambers Global 2019 in immigration law, among other rankings.

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