The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system.
The White House Now Apparently Focusing on the Dream Act, H-1B, L-1 and other Skilled/Professional Work Visas
Newley Purnell of the The Wall Street Journal blogged today about the White House’s Plans for H-1B and other Skilled/Professional Work Visas. The changes are likely to include “Tighter restrictions on skilled worker visas” which could be issued via “both executive action by President Donald Trump and via Congressional moves“. The article notes that “President Trump could use an executive directive to take steps like ending a provision announced in 2014 that allows spouses of H-1B visa holders [H-4 Spouses] to work in the U.S.” As well, any such changes would be included in a more comprehensive immigration reform effort.
USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
- Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
- Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
- Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
- Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
- They are the principal beneficiaries of an approved Form I-140 petition,
- An immigrant visa is not authorized for issuance for their priority date, and
- They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.
- Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
- Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
- Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
- Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
- Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
According to USCIS, H-1B and L-1 petitions filed on or after Oct. 1, 2015, should not include the additional fee that was previously required by Section 402 of Public Law 111-230, as amended by Public Law 111-347, for certain H-1B and L-1 petitions. The additional fee required by Public Law 111-230, as amended, expired on Sept. 30, 2015.
All other H-1B and L-1 fees, including the Base fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee when applicable, are still required. Petitions with incorrect fees may be rejected. Petitioners are reminded that USCIS prefers separate checks for each filing fee.
Public Law 111-230, enacted on Aug. 13, 2010, required an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010. Public Law 111-347, enacted on Jan. 2, 2011, extended the fees through Sept. 30, 2015.
Fixing Our Broken Immigration System Through Executive Action – Key Facts
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”).
Customs and Border Protection has Designated (optional) Ports of Entry for First Time Canadian TN (NAFTA) and L Visa Applicants
Traveling on a TN or L-1 Visa From Canada?
This week, Bill Snyder, a blogger for the anti-H-1B propaganda site Infoworld posted an article attacking Immigration of the Educated. What is especially interesting about Mr. Snyder’s position is the fact that it signals the resumption of the 2008 attack on the Optional Practical Training program (OPT). OPT being a temporary work authorized status granted to eligible F-1 students who may thus gain professional work experience post graduation, and perhaps a portion back of 20+ billion dollars in tuition they pay into our coffers each year.
Unjustified ire towards OPT is peaking only because the program may be utilized by eligible F-1 Science/Technology/Engineering/Math (STEM) graduates. Apparently, for Mr. Snyder, it is only then that the program transforms into what he terms “a sleazy end run around the law”. Mr. Snyder claims that these new STEM graduates, supported by their “tech company” employers, enter the U.S. workforce en masse to undercut IT wages. Said wages, which he admits in the first sentence, are already “climbing to more than $87,000 a year”.
The fact that Mr. Snyder’s argument against OPT flies in the face of the concept of American Exceptionalism and two basic economic principles, or that it is entirely bereft of any unbiased and relevant data is moot. The most significant takeaway from his article is that STEM OPT is nothing more than a scapegoat: this attack is actually and truly directed against the H-1B program itself. Mr. Snyder and other IT protectionists seek justification to undermine the OPT program not because of any alleged misuse, but because OPT allows a post graduate STEM worker precious time to find a good employer who may agree to pay government fees of up to $5,550.00 (plus attorney fees) to file an H-1B petition on their behalf. (There are no guarantees of approval, nor is the worker forced to even ultimately take up employment with the H-1B petitioner. As well, in the future, the H-1B worker, for any reason, may transfer to a new H-1B employer in as little as one week.)
Our immigration policy is increasingly hobbled by protectionists who, for short term gain (or perhaps unknowingly), damage our nation’s international lead in the STEM fields. Our insufficient H-1B cap that does the same: tens of thousands of highly qualified, valuable STEM professionals were rejected in last year’s random selection process (H-1B lottery), and sadly the scene is set be repeated again this year in April.
Our repeated rejection of STEM professionals is untenable and is certain to diminish our ability to attract the worlds best and brightest, unless we make drastic changes. Already, other nations are eagerly recruiting STEM workers (sometimes from within our own borders). The bottom line: the yearly H-1B cap must be increased to an amount commensurate to demand, or at the very least, to a level that isn’t exhausted in one week.
Data Reveals USCIS Increasing Number of Requests for Evidence on L-1B Cases, California Service Center Continues to Lead Vermont Service Center in RFEs and Case Denials
Responding to a Freedom of Information request submitted by The American Immigration Lawyers Association Liaison, USCIS revealed interesting data on L-1B nonimmigrant petitions receipted, approved, denied, and those subjected to a Request for Evidence (“RFE”) for FY2012 and FY2013. The data, when compared with USCIS statistics and a National Foundation for American Policy report, both released in 2012, reveals that the L-1B denial rate increased from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.
TITLE IV OF THE SENATE’S S.744 IMMIGRATION REFORM BILL – RELATING TO CHANGES IN H-1B, L-1, E-2 NONIMMIGRANT VISAS
TITLE IV–REFORMS TO NONIMMIGRANT VISA PROGRAMS
Subtitle A–Employment-based Nonimmigrant Visas
SEC. 4101. MARKET-BASED H-1B VISA LIMITS.
(a) In General- Section 214(g) (8 U.S.C. 1184(g)) is amended–
(1) in paragraph (1)–
(A) in the matter preceding subparagraph (A), by striking `(beginning with fiscal year 1992)’; and
(B) by amending subparagraph (A) to read as follows:
`(A) under section 101(a)(15)(H)(i)(b) may not exceed the sum of–
`(i) the base allocation calculated under paragraph (9)(A); and
`(ii) the allocation adjustment calculated under paragraph (9)(B); and’;
(2) by redesignating paragraph (10) as subparagraph (D) of paragraph (9);
(3) by redesignating paragraph (9) as paragraph (10); and
(4) by inserting after paragraph (8) the following:
`(9)(A) Except as provided in subparagraph (C), the base allocation of nonimmigrant visas under section 101(a)(15)(H)(i)(b) for each fiscal year shall be equal to–
`(i) the sum of–
`(I) the base allocation for the most recently completed fiscal year; and
`(II) the allocation adjustment under subparagraph (B) for the most recently completed fiscal year;
`(ii) if the number calculated under clause (i) is less than 115,000, 115,000; or
`(iii) if the number calculated under clause (i) is more than 180,000, 180,000.
New Delhi | November 19, 2012
In March of 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP) which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. Following the success of the IWP, as part of continuing efforts to streamline the visa process, and to meet increased visa demand in India, the U.S. Mission is pleased to announce an expansion of the IWP. We expect this expansion to benefit thousands of visa applicants in India.
A National Foundation for American Policy report finds Indian applicants for L-1 and H-1Bs are most likely to be denied or issued an RFE query; L-1 cases for Indian Professionals have been denied up to five times as often as someone from a different count
A National Foundation for American Policy report which analyzed official data from USCIS revealed evidence that Adjudicating Officers have dramatically increased the issuance of denials and requests for evidence in L-1 (intra-company transferees) and H-1B cases over the last four years, in spite of the fact that there were no changes in law or regulations during the same period. USCIS Officers have, over the last four years, arbitrarily & en masse, increased the difficulty of obtaining H-1B or L-1 status, most particularly for Indian applicants.
Again, this is so despite no new laws or regulations authorizing a change in adjudication protocols. It may be therefore objectively stated that this data is prima facia evidence that Indian IT professionals and their employers have been, over a sustained period, selected for profiling and targeting profiled and targeted as the primary victims of this and other related USCIS “policy changes” since 2008, along with a widely noted increase in visa denials/221(g) queries for H-1 & L-1 non-immigrants at U.S. Consulates [on a related note; see the new “H-1B Beneficiary attestation” evidently now in use at the U.S. Consulate, Hyderabad, ostensibly to be used in justifying mass visa denials for H-1B IT Consultants with end-client job sites].
By way of background, the primary basis for U.S. Immigration law today is the Immigration and Nationality Act of 1965 (“INA”). The INA is tremendously significant because it reversed America’s then (longstanding) racist Immigration policies, including the Page Act of 1875, the 1882 Chinese Exclusion Act and the “National Origins Formula” which had effectively limited immigration from Mediterranean Europe, Latin America and Asia to token levels so as not to change America’s “national character”. It is then truly ironic that adjudicators at the USCIS and U.S. Consulates appear to have been granted unchecked autonomy in systematically countermanding both the INA and its underlying legislative intent by effectively re-proportioning visas or “spots” to countries other than India.
Indians utilize a large number of available H-1B and L-1 numbers, however, they cannot be legally denied on that basis. On October 3, 1965, on the occasion of the signing of the INA, at the foot of the Statue of Liberty, President Lyndon B. Johnson declared that it was a “cruel and enduring wrong” that “…Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. [The old quota based Immigration] system violated the basic principle of American democracy–the principle that values and rewards each man on the basis of his merit as a man…”
Contrast these words with the following excerpts from the NFAP report:
“Companies believe that denials either at U.S. Citizenship and Immigration Services or at consulates, particularly involving Indian nationals, share the common attribute of new (unwritten) arbitrary standards that go beyond the statute and regulations.
Country specific data on new (initial) L-1B petitions indicate U.S. Citizenship and Immigration Services is more likely to deny a petition from an Indian-born professional than nationals of other countries. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent in Fiscal Year 2008 to 22.5 percent in FY 2009, a substantial increase that resulted in many employers being unable to transfer their employees into the United States to work on research projects or serve customers. In comparison, the denial rate for new L-1B petitions for Canadians rose from 2.0 percent in FY 2008 to only 2.9 percent in FY 2009. Illustrating the abrupt change, U.S. Citizenship and Immigration Services denied more L-1B petitions for new petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008).
Concern that L-1B petitions for Indians have been singled out might be alleviated if the data showed other countries have experienced similar increases in the rates of denial for L-1B petitions with U.S. Citizenship and Immigration Services. However, the data show that while other foreign nationals experienced an increase in denial rates for new L-1B petitions starting in FY 2009, those denial rate increases were far lower than for Indian nationals. L-1 visa issuance declined at U.S posts in Indian in FY 2011 but rose overall for the rest of the world.”
Read the NFAP findings (.pdf)