Archive for October, 2011

The H-1B Visa and the Specialty Occupation Requirement

Immigration, United States Immigration | Posted by Herman Dhade
Oct 31 2011

The H-1B Visa and the Specialty Occupation Requirement

H-1B visas are typically utilized by U.S. employers seeking to employ a foreign national in a specialty occupation. See www.uscis.gov. Prior to filing the I-129 petition for an H-1B visa, a Labor Condition Application must be applied for with the Department of Labor. The Labor Condition Application requires the U.S. employer to make four essential attestations in order to protect the U.S. labor market. See Martin J. Lawler and Margaret D. Stock, Professionals: A Matter of Degree, 5th ed., at 271 (2009 AILA Publications). Upon approval of the Labor Condition Application, the I-129 non-immigrant visa petition may be filed.

 

An H-1B visa is an attractive visa option for professionals seeking to work and immigrate to the U.S., since the prospective applicant is permitted to harbor immigrant intent. However, a major obstacle in applying for an H-1B visa, is demonstrating that the occupation which the foreign national is being employed in is a “specialty occupation.”

 

For H-1B purposes, a specialty occupation is referred to as an “occupation which requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” See INA 214(i)(1). This definition is extremely cumbersome. There is no list of approved specialty occupations. Moreover, proving that the particular “specialty occupation” requires the attainment of a bachelor’s degree is also another hurdle that must be overcome.

 

If one is indeed successful in attaining approval of their H-1B visa petition,   the H-1B visa is initially valid for a three year period, and an individual in H-1B status in the U.S., is eligible to renew their visa for an additional three years. See www.uscis.gov. The total period of time that an individual may remain in valid H-1B status in the U.S. is six years. See Martin J. Lawler and Margaret D. Stock, Professionals: A Matter of Degree, 5th ed., at 207 (2009 AILA Publications).

 

Mechanisms exist that allow individuals in H-1B status to extend their stay in the U.S., such as re-capturing time spent abroad while in H-1B status. Id. at 223. Further, because an H-1B visa allows for dual intent, immigrant and non-immigrant intent, individuals who have applied for permanent residence while in H-1B status, and whose period in H-1B status has expired while they are awaiting approval of their permanent residence applications, are eligible to apply for unlimited one-year extensions of H-1B status until their application for permanent residence is approved.

 

With the proper assistance of counsel, an H-1B visa is attainable, and a feasible option for employers seeking to hire a foreign national to work in what is referred to as a “specialty occupation.” For further information or inquiries on the H-1B visa process, feel free to contact our office.

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Los inmigrantes latinoamericanos en los estados unidos

Immigration, United States Immigration | Posted by Herman Dhade
Oct 31 2011

Los inmigrantes latinoamericanos en los estados unidos

Hoy en día, la mayoría de los inmigrantes en los Estados Unidos es de Latinoamérica. Los mexicanos forman el grupo principal, seguido por los cubanos y los salvadoreños. Aunque el crecimiento de inmigrantes hispanos ha declinado en los años recientes, ha sido rápido a lo largo de la última década. El censo de 2010 muestra que hay 21.2 millón inmigrantes latinoamericanos en los Estados Unidos, 5.1 millón más que en 2000 (16.1 millón). La mayoría de ellos, residen en los estados de California, Tejas, Florida, y Nueva York. Las contribuciones de los inmigrantes han sido substanciales, particularmente la contribución económica.
Los inmigrantes son un grupo que forma un 15% de la mano de obra, aunque forma 12% de la población. Son un grupo clave para las industrias de agricultura, servicios, y construcción.  Las ciudades con un crecimiento rápido de inmigrantes, como Denver, Atlanta y Phoenix, han experimentado un crecimiento rápido en sus economías. Las economías de ciudades como Detroit o Cleveland, que no han experimentado un crecimiento rápido de inmigrantes, han sufrido económicamente. El número de empresas creado por hispanos es tres veces más que el promedio nacional. Además, los inmigrantes hispanos han contribuido a la economía estadounidense por los impuestos de propiedad y por el consumo. La labor de los inmigrantes latinoamericanos, su espíritu emprendedor, y su consumo de productos vendidos en los Estados Unidos, hacen este grupo un parte crucial del país.

http://pewhispanic.org/reports/report.php?ReportID=140
http://www.fas.harvard.edu/~gstudies/latin/curriculum/intro.htm
http://www.nilc.org/immspbs/research/research003.htm
http://www.fiscalpolicy.org/immigration.html

http://www.census.gov/population/foreign/

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The Petty Offense Exception to Section 212 of the Immigration and Nationality Act

Immigration, United States Immigration | Posted by Herman Dhade
Oct 25 2011

Immigration consequences can be steep for certain aliens who are convicted of committing crimes while in the United States. The commission of certain offenses, which may be classified as “crimes involving moral turpitude,” may render an alien inadmissible or removable from the U.S. See INA § 212(a)(2) and § 237.

A crime involving moral turpitude (CIMT) involves a crime that is “inherently base, vile or depraved, and contrary to the accepted rules of morality, and the duties owed between persons or society in general.” Matter of Olquin, 23 I & N Dec. 896 (BIA 2006). Though the consequences of being charged with a CIMT may be severe, aliens who commit certain offenses may still be eligible for admissibility into the U.S. Aliens whose offenses fall within what is referred to as the “petty offense exception,” will not be found inadmissible to the U.S.

Section 212(a)(2)(A)(ii)(II) of the Immigration and  Nationality Act, states that an alien who has only committed one crime shall not be found inadmissible if the “maximum penalty possible for the crime of which the alien was convicted . . . did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months.” See INA § 212(a)(2)(A)(ii)(II). Therefore, certain aliens may seek comfort in knowing that not every offense will subject that alien to being found inadmissible.

 

Aliens who only commit ONE crime that is considered a CIMT may fall within the petty offense exception. Further, for an alien to qualify under the petty offense exception and not be found inadmissible, the statute under which he/she was convicted must not impose a term of imprisonment of more than one year. In conjunction with that requirement, the alien’s sentence must not have been in excess of six months of imprisonment. Both these factors must be satisfied in order for the alien to qualify for the petty offense exception.

 

The petty offense exception allows certain qualifying aliens to avoid harsh immigration consequences. To determine whether your offense falls under the petty offense exception, feel free to contact our offices.

 

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Refugee Status for Displaced Religious Minorities in Iraq

Immigration, United States Immigration | Posted by Herman Dhade
Oct 25 2011


The U.S. led war in Iraq, has left many Iraqi nationals internally displaced. Many of Iraq’s religious and ethnic minorities fear returning to Iraq, and being targeted for persecution based on their race, nationality, religious beliefs, ethnicity, political opinion, or membership in a particular social group.

In an effort to offer a safe harbor to Iraqi’s who have been displaced, the U.S. has willingly offered assistance to these displaced individuals, and has even broadened the category of Iraqi’s who are eligible for refugee resettlement in the U.S.

 

Refugee Defined

 

The Immigration and Nationality Act defines “Refugee” as any person who is outside their country of nationality, and who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(42)(A). This “well-founded fear” must also make the person unwilling or unable to return to the country of feared persecution. Id. Further, even where the person with a well-founded fear of persecution based on one of the aforementioned grounds is still in the country of feared persecution, the President of the U.S., may in his discretion specify that person as a refugee. See INA § 101(a)(42)(B).

 

Person’s Eligible to Directly Apply for Refugee Status with USRAP

 

National’s of Iraq who have assisted the U.S. by offering services as an interpreter or translator are eligible to directly apply for refugee status in the U.S. through the United States Refugee Admission Program (USRAP). See http://www.state.gov/g/prm/rls/fs2011/163502.htm. Moreover, in an effort to assist more of Iraq’s displaced nationals, the U.S. has expanded the categories of Iraqi Nationals eligible for “Direct Access” to the U.S. via USRAP, to those currently displaced in Egypt and Jordan, who supported U.S. directives in Iraq. Id. Direct Access is available to Iraqis who are spouses, children, parents, or siblings of U.S. citizens, or who are the spouses or unmarried children of a Permanent Resident Alien of the U.S., via an approved I-130 Immigrant Visa Petition. Id. Individuals who qualify for these categories, may directly access USRAP in Egypt, Jordan, and Iraq. Id.

 

In addition, the U.S. has recognized that Iraqi’s who have been subjected to religious persecution due to their affiliation with Iraq’s religious minorities, or who fear persecution based on their religious beliefs, are also given particular care when applying for refugee status. Id. In sum, the U.S., has expanded access to USRAP to Iraqi’s with direct family in the U.S., who fear persecution on one of the enumerated grounds in section 101(42) of the Immigration and Nationality Act.

 

Applications for refugee status in the U.S. are processed based on various priority categories. Priority 1 involves direct referrals to USRAP by the United Nations High Commissioner for Refugees (UNHCR), a United States Embassy, or a designated non-governmental organization (NGO).  Priority 2 deals with groups of special humanitarian concern identified by USRAP. Priority 3 deals with cases of family reunification. See www.uscis.gov.

Refugees Already in the U.S. Petitioning for Their Relatives in Iraq Facing Persecution

Further, refugees who have already arrived in the U.S. may also file Form I-730 Refugees/Asylee Relative Petition. This form allows individuals admitted as refugees to the U.S. to apply on behalf of spouses, children, parents, and siblings. Id. The application must be filed within two years of the principal refugee’s admittance to the U.S. Typically, I-730 take seven to nine months to be adjudicated. Once a National of Iraq is admitted to the U.S. as a refugee, they must remain in refugee status for 12 months before filing an application to adjust their status to a Lawful Permanent Resident. See http://www.state.gov/g/prm/rls/fs2011/163502.htm. While waiting to adjust status, the refugee is expected to apply for work authorization and work in the U.S. Id.

In Sum . . .

Nationals of Iraq who have a well-founded fear of persecution based on their race, nationality, religion, membership in a particular social group, or political opinion, are eligible to apply for refugee status with the U.S. government. For some displaced Iraqi’s in Jordan and Egypt, this may be done through Direct Access to USRAP. Other displaced Iraqi’s have the option of registering with UNHCR offices, which may refer eligible refugees to USRAP. Moreover, once a refugee is admitted to the U.S., they have available to them various mechanisms to bring members of their “nuclear family” to the U.S.

For more information, or to determine whether you or your family members are eligible to apply for Refugee Status with the U.S. government, feel free to contact our offices.

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Foreign Nationals Seeking to Adjust Status Based on Their Marriage to a United States Citizen

Immigration, United States Immigration | Posted by Herman Dhade
Oct 23 2011

Foreign Nationals Seeking to Adjust Status Based on Their Marriage to a

United States Citizen

You, the Foreign National, are in the United States on a non-immigrant visa. Throughout your temporary stay here, the unexpected happens. You meet a person who sweeps you off your feet. All of the sudden, you can no longer picture your life without this person. As time continues on, you and this individual are married to one another. However, a problem presents itself. In the midst of your newfound relationship, you realize your non-immigrant visa is due to expire, and you fear being separated from your U.S. citizen spouse. Fortunately for you, United States Citizenship and Immigration Services (USCIS), has a sense of compassion for individuals who find themselves in situations such as yours. To ensure family unity, and stability, USCIS has made Adjustment of Status within the U.S., a viable option for non-immigrants who marry U.S. citizens, to transition to lawful permanent residence based on their marriage; so long as USCIS is satisfied that the marriage is “bona fide.”

Addressed below, is the basic process that has been established to permit non-immigrant Foreign Nationals who marry U.S. citizens to remain in the U.S. as lawful permanent residents.

What is Adjustment of Status?

Adjustment of Status is a process utilized by Foreign Nationals who are admitted to the United States as non-immigrants, in order to become lawful permanent residents in the U.S. Immigration and Nationality Act, § 245. It is in the discretion of the attorney general of the U.S. to allow a Foreign National to adjust status. Id at § 245(a). To do so, the Foreign National must apply to adjust status via USCIS Form I-485, Application to Adjust Status; the Foreign National must be eligible to adjust status, and there must not be a bar to the Foreign National’s admissibility to the U.S. for permanent residence; and lastly, there must be an immigrant visa readily available for the Foreign National at the same time that the application to adjust status is filed. Id at § 245(a)(1)-(3).

In its desire to further promote family unity, USCIS allows U.S. citizens to petition for certain relatives to permanently live in the U.S. Spouses, unmarried children of U.S. citizens under the age of 21, and the parent(s) of a U.S. citizen who is over the age of 21, are eligible to adjust status. Two options are available for the Foreign National if they are in the U.S. to adjust status. The Foreign National may either adjust status by utilization of “One-Step” processing (also referred to as concurrent filing) or “Two-Step” processing. (See www.uscis.gov). Due to the efficiency and convenience, One-Step processing is the preferable method for Foreign Nationals already present in the U.S. in non-immigrant status, to adjust status and become permanent residents in the U.S.

How Does a Foreign National Adjust Status While in the U.S.?

One-step processing culminates into a convenient and efficient method for those admitted as non-immigrants, who marry U.S. citizens and are present in the U.S., to become lawful permanent residents. One-step processing entails simultaneously filing an I-485, Application to Adjust Status, and I-130, Petition for Alien Relative. Because a Foreign National spouse of a U.S. citizen qualifies as an “immediate relative,” a visa number is immediately available, allowing for the utilization of One-step processing. A clear advantage to One-step processing, is the elimination of consular processing by means of the Department of State. (See www.uscis.gov).

 

Forms I-485, Application to Adjust Status & I-130, Petition for Alien Relative

Form I-485 is to be completed by the non-immigrant applicant seeking to adjust status. Certain initial supporting documentation must be submitted with the I-485. Such supporting documentation includes: documentation regarding the non-immigrants criminal history in the U.S., if applicable; birth certificate; copy of passport with non-immigrant visa; photos; biometric clearances; police clearances; medical exams; Form G-352A, Biographic Information Sheet; Affidavit of Support, Form I-864 and an employment letter by the relative sponsoring the non-immigrant for adjustment of status via the I-130; and lastly, a copy of the I-130 Petition for Alien Relative must be attached to the I-485, as proof of the non-immigrant’s eligibility to adjust status. (See Instructions for Form I-485).

Form I-130, Petition for Alien Relative, is to be completed by the U.S. citizen spouse, commonly referred to as the “petitioner.” Completion of the I-130 to be submitted with the I-485 application, requires submission of the following supporting documents by the petitioner: proof of U.S. Citizenship, which may be demonstrated through submission of a birth certificate, certificate of naturalization/naturalization certificate, a copy of the petitioner’s expired U.S. passport, etc.; a copy of your marriage license, in order to prove the family relationship, along with proof of termination of prior marriages, if applicable; Form G-325A biographic information sheet, to be completed by the Petitioner and spouse being sponsored; along with other evidence demonstrating the marriage is “bona fide,” (not a sham). (See Instructions to Form I-130).

Evidence demonstrating the marriage is bona fide, or “legitimate,” would include submission of the existence of joint ownership of property in both spouses names, a lease in the name of both spouses, proof that assets of the spouses have been co-mingled, birth certificates of biological children of the petitioner and his/her spouse, along with affidavits attesting to the bona fides of the marital relationship. Moreover, a petitioner is urged to submit any other documentation that would assist in demonstrating the bona fides of the marriage, such as mail in the name of the petitioner and the spouse, utility payments in the name of both spouses, and photographs of the petitioner and spouse together. (See Instructions to Form I-130).

Once the non-immigrant seeking to become a lawful permanent resident via his marriage to a U.S. citizen, and the petitioning U.S. citizen spouse, compile all of the documentary evidence to be simultaneously submitted with Forms I-485 and I-130, the applications will be sent together to the USCIS Chicago Lockbox. Upon receipt, the application will be checked to ensure it is complete. USCIS has the liberty of requesting more supporting information or evidence, or the originals of documents that it has received by the petitioner and Foreign National. Further, USCIS may request that the Foreign National and petitioner, make themselves available for an interview at the USCIS offices. Once USCIS comes to a decision, the Foreign National and petitioner will receive a written decision from USCIS. (See www.USCIS.gov).

Benefits of Adjustment of Status Through One-Step Processing

Adjustment of status from non-immigrant to immigrant status is beneficial for those non-immigrants present in the U.S. seeking to adjust status based on their marriage to U.S. citizens. Further, One-step processing, simplifies the adjustment of status process by eliminating consular processing through the Department of State. Additionally, USCIS helps expedite the adjustment of status process because it makes visas immediately available for those seeking to adjust status based on their qualifying as an “immediate relative” of a U.S. citizen, a category that a spouse clearly classifies under.

To determine whether Adjustment of Status based on your marriage to a U.S. citizen is a viable option for you, please contact our offices and schedule a consultation, so that we may assess the circumstances surrounding your possible transition from non-immigrant to immigrant status.

 

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Proving Non-immigrant Intent

Immigration, United States Immigration | Posted by Herman Dhade
Oct 23 2011

Proving Nonimmigrant Intent

Two principal visa categories exist. The first, are those visas that fall within the “Immigrant Visa” category. Immigrant visas are available to those seeking to permanently remain in the U.S. The second category, referred to as “Nonimmigrant Visas,” is a viable option for those seeking to visit the U.S. on a temporary basis.
Nonimmigrant Visas
Applying for a nonimmigrant visa is an avenue to temporarily remain in the U.S. for those desiring to travel to the U.S. to visit the various tourist destinations, to conduct business in the U.S., receive medical treatment in the U.S., or engage in temporary work in the U.S. See http://travel.state.gov/visa/temp/temp_1305.html

B-1/B-2 Nonimmigrant Visa

One common visa category, B-1/B-2, visitor for business or pleasure, is a common nonimmigrant visa category. A B-1 visa is commonly used by those individuals longing to enter the U.S. for purposes of conducting business on a temporary basis. Whereas a B-2 visa, is a feasible option for individuals seeking to enter the U.S. for pleasure, tourism, medical treatment or to engage in personal affairs. http://travel.state.gov/visa/temp/types/types_1262.html
Applying for a B-1/B-2 nonimmigrant visa involves several steps, the submission of relevant applications pertaining to the prospective nonimmigrant’s reason for coming to the U.S., and the submission of various supporting documents. Though the application process may seem complex, it is manageable through the proper assistance of counsel.
Presumption of Immigrant Intent
However, there is one major hurdle that a foreign national seeking to apply for a nonimmigrant visa to the U.S. The foreign national must overcome the presumption of immigrant intent.
Pursuant to U.S. immigration law, “every alien nonimmigrant . . . shall be presumed to be an immigrant . . .” until such alien demonstrates to the consular officer at the time the visa is applied for, and to the immigration officer at the time of admission, that he possesses nonimmigrant intent. See INA § 214(b). It is imperative that the foreign national overcomes the presumption of immigrant intent, and demonstrates that he does NOT harbor immigrant intent, as this would be contradictory of the nonimmigrant visa category that the nonimmigrant is seeking to enter the U.S. under.
Evidence to Overcome the Presumption of Immigrant Intent
Certain evidence must or should be submitted with the nonimmigrant visa application in order to defeat the presumption of immigrant intent. The following documentary evidence is sufficient in most instances to overpower the presumption of immigrant intent:
Evidence demonstrating the purpose of the trip;
Intent to depart the U.S. via a round-trip ticket;
Arrangements to cover the costs of the trip;
Family ties to the foreign national’s home country;
Bank accounts in the foreign nationals home country;
Employment in the foreign nationals home country;
Proof of permanent residence in the foreign national’s home country;
If the foreign national is coming to conduct business in the U.S., proof the duration of the business is temporary, and that the foreign national will be paid abroad by his employer;
Any other relevant evidence that would demonstrate the foreign national intends to depart the U.S. upon expiration of his visa.
See http://travel.state.gov/visa/temp/types/types_1262.html. This list is not comprehensive, and a plethora of other avenues exist to help overcome the presumption of immigrant intent. Provided you are prepared with the appropriate documents accompany your application, this burden may be satisfied.
For further information on applying for nonimmigrant visas to enter the U.S., and overcoming nonimmigrant intent, please contact our offices.

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Vakhtang Pruidze v. Eric H. Holder, Jr., United States Attorney General

Immigration, United States Immigration | Posted by Herman Dhade
Oct 23 2011

Our firm successfully argued this landmark case in the United States Court of Appeals for the Sixth Circuit.  This case was an individual who was ordered removed from the United States due to a conviction.  Subsequently, that conviction was vacated. Since the underlying basis for the removal order was vacated, the Court of Appeals held that the individual may still file a motion to reopen even though he is not in the United States.  Full text of the decision is below.

 

———————————————————————————————————————

RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VAKHTANG PRUIDZE, Petitioner

v.

Eric H. Holder Jr., United States Attorney General, Respondent

No. 09-3836

On Petition for Review of an Order of the Board of Immigration Appeals.No. A077 434 982.Argued: October 18, 2010

Decided and Filed: February 3, 2011

Before: BOGGS, MOORE, and SUTTON, Circuit Judges.

COUNSEL

ARGUED:  Herman S. Dhade, DHADE & ASSOCIATES, Farmington Hills, Michigan, for Petitioner.  Jessica Segall, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.  Trina Realmuto, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amici Curiae.  ON BRIEF:  Marshal E. Hyman, Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOCIATES, PC, Troy, Michigan, for Petitioner.  Anthony J. Messuri, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Trina Realmuto, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, Beth Werlin, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amici Curiae.

OPINION

SUTTON, Circuit Judge.  The Board of Immigration Appeals interprets a

regulation promulgated by the Attorney General to provide that the Board lacks

1

jurisdiction to review a motion to reopen once an alien leaves the United States, whether voluntarily or involuntarily. Yet the statute that empowers the Board to consider motions to reopen says nothing about jurisdictional limitations of any kind, let alone this kind. Because this regulatory interpretation has no roots in any statutory source and misapprehends the authority delegated to the Board by Congress, the Board’s order disclaiming power to consider the motion to reopen filed by Vakhtang Pruidze must be vacated.

I.

In July 2004, Pruidze, then a green-card holder, returned to the United States and applied for admission as a lawful permanent resident alien.  The Department of Homeland Security denied his application for admission, explaining that Pruidze’s state conviction for a controlled-substance crime made him inadmissible.  After a merits hearing, an immigration judge found Pruidze removable and denied his application for withholding of removal.  The Board affirmed the immigration judge’s decision without opinion, and this court denied Pruidze’s petition for review.

On April 6, 2009, the Department issued a warrant for Pruidze’s removal and removed him on April 29.  Six days later, Pruidze moved the state court to reopen his criminal proceedings because he had entered his guilty plea without counsel.  On May 12, 2009, the state court set aside Pruidze’s conviction and redocketed the case.

On May 29, 2009, Pruidze moved the Board to reopen his removal proceedings based on the state court’s decision to set aside the conviction.  The Board denied his motion, reasoning that, because Pruidze was no longer in the United States, it did not have “jurisdiction” to hear Pruidze’s motion. The Board relied on Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (B.I.A. 2008), which held that the “departure bar,” 8 C.F.R. § 1003.2(d), divested the Board of “jurisdiction” to entertain motions to reopen filed by aliens who are abroad. The departure bar says that “[a] motion to reopen . . . shall not be made by . . . a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.”  Id.

II.

Pruidze’s petition for review raises one question:  Does the Board of Immigration Appeals lack jurisdiction to consider an alien’s motion to reopen once the alien is no longer in the United States? The answer is no.

A.

Some background is in order.  In 1940, Congress put the Attorney General in charge of immigration matters, giving the office the authority “to make and prescribe, and from time to time to change and amend, such rules and regulations not in conflict with this Act as he may deem necessary and proper in aid of the administration and enforcement of this title.”  Pub. L. No. 76-670, 54 Stat. 675, 675, § 37(a) (1940). That same year, the Attorney General established the Board of Immigration Appeals. Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4, 1940) (codified at 8 C.F.R. § 90.2).  By regulation, the Board may entertain immigration-related motions on behalf of the Attorney General subject to limitations that the Attorney General places on that authority.  Id. at 3504 (codified at 8 C.F.R. § 90.9 (1941)). In 1952, the Attorney General promulgated the “departure bar,” a regulation barring the Board from reviewing a motion to reopen filed by a person who has left the United States.  17 Fed. Reg. 11469, 11475 (Dec. 19, 1952) (codified at 8

C.F.R. § 6.2 (1953)). Then, not unlike today, the regulation read:

A motion to reopen or a motion to reconsider [before the Board] shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States.  Any departure of such person from the United States occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion.

Id.  Early on, the Board construed the departure bar as a limitation on the agency’s “jurisdiction.” Matter of G-Y-B, 6 I. & N. Dec. 159, 159–60 (B.I.A. 1954). The substance of the departure bar has not changed, although the Attorney General has redesignated it several times.  See 27 Fed. Reg. 96, 96–97 (Jan. 5, 1962) (codified at 8

C.F.R. § 3.2 (1962)); 61 Fed. Reg. 18900, 18905 (Apr. 29, 1996) (codified at 8 C.F.R.

§ 3.2(d) (1997)); 68 Fed. Reg. 9824, 9830 (Feb. 28, 2003) (codified at 8 C.F.R. § 1003.2(d)).

While continuity has marked the regulation, change has marked the statutory backdrop to it. In 1961, Congress created a statutory counterpart to the Board’s departure bar for judicial review of immigration decisions, establishing that federal courts could not review deportation and exclusion orders if the aliens left the country after the agency issued the contested orders.  Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 650, 651–53 (1961) (codified at 8 U.S.C. § 1105a(c) (1962)) (“An order of deportation or of exclusion shall not be reviewed by any court if the alien . . . has departed from the United States. . . .”).

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, overhauling immigration law in many respects.  Pub. L. No. 104¬208, div. C, 110 Stat. 3009, 3009-546 (Sept. 30, 1996). Of import here, Congress

•             codified the right to file a motion to reopen, IIRIRA § 304(a)(3) (codified at 8 U.S.C. § 1229a(c)(6) (1997)) (recodified as § 1229a(c)(7) in 2005 without substantive changes, see REAL ID Act of 2005, Pub. L. No. 109¬13, div. B, § 101(d), 119 Stat. 231, 304 (May 11, 2005));

•             repealed the statutory departure bar to judicial review, IIRIRA § 306(b); and

•             adopted a 90-day period for the government to deport a person ordered removed, IIRIRA § 305(a)(3) (codified at 8 U.S.C. §  1231(a)(1)), and a 60- or 120-day limit for voluntary departures, IIRIRA § 304(a)(3) (codified at 8 U.S.C. §§ 1229c(a)(2)(A), (b)(2)).

In implementing the Act, the Attorney General promulgated several additional regulations. Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312 (Mar. 6, 1997). Among other regulatory considerations, the Attorney General, after a notice and comment period, concluded that the Act did not repeal the departure bar and opted to maintain the bar on motions to reopen and motions for reconsideration.  Id. at 10321, 10331.

In 2000, Congress made additional revisions to the statute governing motions to reopen. See Violence Against Women Act of 2000, Pub. L. No. 106-386, div. B, § 1506(c), 114 Stat. 1464, 1528 (codified at 8 U.S.C. § 1229a(c)(6)(C)(iv) (2000)).  In an effort to aid victims of domestic violence, Congress exempted some alien victims from the deadlines on motions to reopen.  8 U.S.C. § 1229a(c)(6)(C)(iv) (2000). In 2005, Congress added a qualifying requirement to the exemption:  the alien victim must be “physically present in the United States at the time of filing the motion.”  See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub.

L. No. 109-162, § 825(a)(2)(F), 119 Stat. 2960, 3063–64 (Jan. 5, 2006) (codified at 8

U.S.C. § 1229a(c)(7)(C)(iv)(IV)).

In 2008, the Board addressed these revisions in Matter of Armendarez-Mendez. It concluded that none of the statutory revisions repealed 8 C.F.R.§ 1003.2(d), “that the departure bar rule remains in full effect” and that it continues to impose a “jurisdictional” bar on the Board’s authority. 24 I. & N. Dec. 646, 660.

B.

In reviewing an administrative action that turns on the meaning of a federal statute that Congress has empowered the agency to interpret, we generally give the agency wide berth in construing the provision.  Unless the statute’s terms “directly address[] the precise question at issue,” we defer to the agency’s “reasonable” interpretation of the provision. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). There is some question whether Chevron applies to disputes about the scope of an agency’s jurisdiction.  Although the Supreme Court has invoked Chevron in resolving some disputes over an agency’s jurisdiction, see, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986), it has not mentioned Chevron in seemingly similar disputes, see Union Pac. R.R. v. Bhd. of Locomotive Eng’rs, __ U.S. __, 130 S. Ct. 584 (2009); Miss. Power & Light Co. v. Miss. ex rel. Moore, 487 U.S. 354 (1988), and, so far as we can tell, has yet to resolve the debate that Justice Scalia and Justice Brennan first waged over the point in 1988.  See Miss. Power & Light, 487 U.S. at 382–83 (Scalia, J., concurring in the judgment) (Chevron applies); id. at 386–87 (Brennan, J., dissenting) (Chevron does not apply). Our circuit has not taken a position on the issue, see Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 936 (6th Cir. 1997), and as of 2009 two scholars agreed that “[t]he Supreme Court has yet to resolve whether Chevron deference should apply when an agency is interpreting the reach of its own jurisdiction.” Nathan Alexander Sales & Jonathan H. Adler, The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1500. Today is not the day to stake out a position on the point because the issue does not affect the outcome of this case.  Pruidze wins either way for two basic reasons.

First, no statute gives the Board purchase for disclaiming jurisdiction to entertain a motion to reopen filed by aliens who have left the country.  The most relevant statute, adopted in the 1996 Immigration Act, offers nothing to support such an interpretation of the regulation. “An alien,” it says, “may file one motion to reopen proceedings under this section, except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv).”  8 U.S.C. § 1229a(c)(7)(A). This is an empowering, not a divesting, provision, as it grants the Board authority to entertain a motion to reopen.  Even the limitations contained in the provision—permitting the alien to file just one motion and excepting alien victims of domestic violence from this limitation, id. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(iv)—do not purport to be jurisdictional. The definition of “alien”—“any person not a citizen or national of the United States,” 8 U.S.C. § 1101(a)(3)—also provides no basis for saying that the Board lacks jurisdiction over certain types of motions to reopen.

The only other clue provided by the 1996 Immigration Act is that Congress repealed the one statutory departure bar then in existence, the one applicable to judicial review. Pub. L. No. 104-208, div. C, § 306(b), 110 Stat. 3009, 3009-612.  Even if an alien’s departure from the United States had legal significance at one point in time under the statutory scheme, the repeal of this departure bar in 1996 eliminates that potential handhold for the Board’s interpretation. Not one of the relevant statutory provisions, then, gives the Board authority “to decline the exercise of jurisdiction which is given.” Union Pac., 130 S. Ct. at 590 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)).

Second, even if doubt lingered about the Board’s authority to interpret the regulation as jurisdictional, a recent line of Supreme Court decisions removes it.  Over the last decade or so, the Court has been vigilant in clarifying the distinction between jurisdictional requirements on the one hand and claim-processing and other mandatory rules on the other. See, e.g., Reed Elsevier, Inc. v. Muchnick, __ U.S. __, 130 S. Ct. 1237 (2010); Union Pac., 130 S. Ct. 584; Bowles v. Russell, 551 U.S. 205 (2007); Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006); Kontrick v. Ryan, 540 U.S. 443 (2004); Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 90 (1998). Not all mandatory requirements, these decisions make clear, establish jurisdictional prerequisites.

Nothing in the statutory scheme suggests that the Board lacks jurisdiction—the legal power or adjudicative competence, see Reed Elsevier, 130 S. Ct. at 1243—to issue decisions that affect the legal rights of aliens abroad.  Whether the regulation itself—essentially a mandatory claim-processing rule to the effect that the Board categorically will reject motions to reopen filed by aliens who have left the country or will always treat such motions as withdrawn upon the alien’s departure—is valid is a different matter, one that has divided the lower courts, compare Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), and Contreras-Bocanegra v. Holder, __ F.3d __, 2010 WL 5209228 (10th Cir. 2010), with William v. Gonzales, 499 F.3d 329 (4th Cir. 2007), and one on which this court has taken a partial position, see Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009) (holding that the departure bar does not apply to the involuntary removal of aliens). What matters here is that the Board has assumed authority to interpret the regulation as a jurisdictional rule, not a mandatory rule, and we cannot ignore the difference between the two. “As a rule about subject-matter jurisdiction,” the departure bar “is untenable.” Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir. 2010).

Union Pacific R.R. v. Brotherhood of Locomotive Engineers, 130 S. Ct. 584, shows why. Congress delegated authority to the National Railroad Adjustment Board over “all disputes,” 45 U.S.C. § 152 First, between carriers and their employees, 45

U.S.C. § 153(h) First, (i). The Adjustment Board promulgated a regulation saying that “No petition shall be considered . . . unless the subject matter has been handled in accordance with the provisions of the [statute].” 29 C.F.R. § 301.2(b).  One of those provisions required the parties to conference before submitting a dispute to the Adjustment Board for arbitration, 29 C.F.R. pt. 301 (2009); 45 U.S.C. § 152, and the Adjustment Board construed the requirement as a jurisdictional prerequisite. 130 S. Ct. at 593–94. After explaining that legal rules can be mandatory without being jurisdictional, the Court held that the Adjustment Board could not curtail its own jurisdiction in this manner.  Id. at 596–98. Nothing in the statute, the Court reasoned, linked this conferencing requirement with the Adjustment Board’s powers, and no statute authorized the Board to create jurisdictional rules. Id.

Union Pacific proves Pruidze’s point. The statute in Union Pacific vested the agency with broad authority over “all disputes,” which the agency nonetheless declined to exercise. Union Pac., 130 S. Ct. at 597 (emphasis added); see 45 U.S.C. § 153(h) First. Just so here: Congress empowered the Board to consider motions to reopen filed by “any person not a citizen or national of the United States.”  8 U.S.C. § 1101(a)(3) (emphasis added); see also id. § 1229a(c)(7)(A). Yet, as in Union Pacific, the Board of Immigration Appeals construed one of its legal rules as jurisdictional.  See 8 C.F.R. § 1003.2(d); see also 29 C.F.R. § 301.2(b); Matter of Armendarez-Mendez, 24 I. & N. Dec. 646. The Board of Immigration Appeals, just like the National Railroad Adjustment Board, cannot point to any statute indicating, or even suggesting, that the relevant requirement—the physical-presence requirement in one instance, the conferencing one in the other—is jurisdictional.  On this statutory slate, the agency may not disclaim jurisdiction to handle a motion to reopen that Congress empowered it to resolve. See Union Pac., 130 S. Ct. at 596.

Even the Board does not buy everything it is trying to sell. In Matter of Bulnes-Nolasco, 25 I. & N. Dec. 57 (B.I.A. 2009), the Board held that it could take action with respect to a motion to reopen filed by an alien who has left the United States if the alien claims not to have received notice of the warrant of removal. Id. at 58–60. Yet if the Board lacks the “adjudicatory authority,” Reed Elsevier, 130 S. Ct. at 1243, to hear motions to reopen filed by aliens who are abroad, it follows that it lacks jurisdiction to hear a subset of those motions.  See Marin-Rodriguez, 612 F.3d at 595. Bulnes-Nolasco suggests that the departure bar does not deprive the Board of jurisdiction to handle all matters relating to removed aliens, which is the explanation the Board gave for declining to hear Pruidze’s motion to reopen.  And the reasons the Board gave for its decision are what we must review.  See Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196–97 (1947).

No doubt, the agency is not required—by statute or by this decision—to grant Pruidze’s motion to reopen.  But it is required—by both—to consider it.  When the Board reconsiders Pruidze’s motion to reopen, it has authority to determine whether the motion is untimely and, if so, whether the departure bar limits the Board’s ability to grant Pruidze relief. Cf. Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) (examining validity of departure bar as applied to Board’s sua sponte authority to grant motions to reopen). If, on the other hand, the Board finds that Pruidze’s motion is not time-barred, it may wish to consider whether the departure bar is a mandatory rule.  Cf. Madrigal, 572 F.3d at 245–46. These are all things the Board may do, but because we review what the Board did do—improperly deny Pruidze’s motion on the invalid ground that it does not have jurisdiction over motions to reopen filed by aliens abroad—they are questions for another day. See Chenery, 332 U.S. at 196–97.

Perhaps, one might say, we have stretched the analogy to Union Pacific. While Congress gave the Adjustment Board power to “adopt such rules as it deems necessary to control proceedings,” 45 U.S.C. § 153 First (v) (2006), it gave the Attorney General power to “establish such regulations, . . . review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.”  8 U.S.C. § 1103(g)(2). The latter delegation of authority, we acknowledge, is broader than the former.  But that reality misses the larger point, the one dispositive here—that an agency cannot contract its power to hear claims that fall plainly within its statutory jurisdiction. See Union Pac., 130 S. Ct. at 596–98; Arbaugh, 546 U.S. at 510, 514.

The Attorney General adds that, under Chevron, we must defer to its interpretation of § 1229a(c)(7) because the provision is silent—or at least ambiguous—on whether an alien abroad may file a motion to reopen.  See 467 U.S. at 843–44. But the Board cannot clear the first step of Chevron because the Court has drawn a line between mandatory rules and claim-processing rules on the one side and jurisdictional ones on the other. Union Pac., 130 S. Ct. at 596. Whatever powers of interpretation Chevron gives agencies, it does not allow them to alchemize the authority to pass a mandatory rule into the authority to pass a jurisdictional one.  We defer to an agency’s efforts to fill statutory gaps, not to create them, and in this instance Congress left no gap to fill when it empowered the agency to consider all motions to reopen filed by an alien, not just those filed by aliens who remain in the United States up to the time of decision. 8 U.S.C. § 1229a(c)(7)(A). The Attorney General may be right that there is “silence” in the statutory scheme.  But the relevant silence goes to the alleged authority to disclaim jurisdiction over motions to reopen in the face of clear language giving the Board jurisdiction over all motions to reopen.  That is not the kind of silence that aids an agency.

The Attorney General takes a different tack in leaning on Commodity Futures Trading Commission v. Schor, 478 U.S. 833. “[W]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change,” Schor says that “the congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.” Id. at 846. Yet when Congress enacted the 1996 Immigration Act, there was no statutory provision to “revisit.”  Until then, Congress had not spoken about motions to reopen and thus it had said nothing that could give rise to an agency interpretation that Congress could codify. The Attorney General had adopted the departure bar in accordance with his then-unlimited authority over motions to reopen, see 17 Fed. Reg. 11469, 11475 (Dec. 19, 1952) (codified at 8 C.F.R. § 6.2 (1953)), and Congress created a statutory right to file a motion to reopen for the first time in 1996.  No less importantly, the Schor presumption is just that, a presumption, and the Board can point to nothing in positive law suggesting that the Board does not have the power to consider motions to reopen in this setting. See Union Pac., 130 S. Ct. at 596.

III.

We vacate the Board’s order and remand the case to the agency for further proceedings.

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