Why President Obama and the Administration must Maintain Focus on Improving Business Immigration

A recent article by CNBC entitled “Investors to Obama: We need more foreign workers” explores the substantial problems faced by investors and entrepreneurs in securing sufficient numbers of foreign professional workers: the engine of innovation in the U.S.  Last year we met the H-1B cap the first week it was open, again: the only solution to the problems highlighted in the article is an increase in H-1B visas, else the demand for the same will relocate to a country like Canada, which intelligently recognizes the true value of such talent.

The CNBC article was forwarded to me by a highly capable entrepreneur/investor client of mine.  His situation warrants a short discussion, because it is supports the message in the article as well as the broader subject of our defective Business Immigration laws.  This client moved his family to the U.S., and recently invested almost $500,000 in a new U.S. based business which employs nine (9) U.S. workers.  Further, this client has purchased two Mercedes Benz vehicles and plans on buying a large house and, in the near term, investing another $1 to $5 million dollars in the U.S. – but only if USCIS approves an extension of his Business Immigration case. Unfortunately, USCIS seems a step away from denying his case, as our 1200+ page application on his behalf (which by the way weighed more than a newborn baby) was met with a ten (10) page Request for Additional Evidence (“RFE”).

For those unfamiliar with RFE’s, this was a major rejection of the voluminous, probative and compelling evidence provided to USCIS.  RFE’s are common, but ten pages of repetitive queries and requests for evidence already provided is rare.  Some of the issued raised in the RFE: clarification on what type of manager our client intends to be (though this was noted seven (7) times in the documentation, including twice on the first page of my brief).  As well, USCIS requested clarification on our client’s job duties, because evidently, the six (6) pages of detailed duties provided by us on this point was deemed “insufficient”.  As well, USCIS’ RFE ignores recent Administrative Appeals Office (“AAO”) cases (it can do this because unlike other legal areas, almost all U.S. Immigration Administrative Appeals Office decisions are “without precedent” – thus an immigration lawyer is forced to essentially “reinvent the wheel” in every case, on almost every point) in determining what the legal definition of “doing business” is.

There are other points in this particular RFE involving nothing more than bureaucratic “red tape” and/or outdated requirements rendered perfectly obsolete, having been invalidated by newer regulations and law.  Yet these vestigial requirements are alive and well, ready for use in ten page RFEs.  For example, the RFE requests a signed statement from my client which notes that his stay in the U.S. will be “temporary” and that he intends to return abroad at some point; however, the regulation requiring this type of intent was implemented before my client’s visa category was removed from the intending immigrant presumption by § 205(b)(1) of the Immigration Act of 1990.  That Act eliminated the requirement of proof of the intention to return abroad – essentially – my client is could (hypothetically) legally maintain the intent to reside in the U.S. “permanently” so long as he maintains his status, no where else is he required to manifest a “temporary” intent.  That a requirement like this (which demands in writing the opposite of all current policy, memos, guidance and law on point) still survives demonstrates how infrequently Business Immigration regulations are revisited and updated.  And the use of such regulation in the RFE demonstrates the resistance encountered in obtaining approvals for people that want to invest in this country.

The client who I referenced above is a top-tier businessperson who will contribute significantly to this Nation.  He will no doubt better our country by helping make it more prosperous and competitive (assuming our response to his RFE is approved).  But, like him, there are many others, possessing skills and waiting in line patiently/legally, who face significant levels of resistance from USCIS when instead they should find welcome.  This is why President Obama’s Executive Action needs to increase and maintain focus with regards to improving our broken Business Immigration policies.  Certainly, breaks for Family Immigration are necessary, appreciated and more than welcome.  But let us not ignore the other side of immigration: by continually turning away top Professionals, STEM workers and Entrepreneurs we are closing the door to immense benefits.  We are turning our back to the future.