The Department of Homeland Security (DHS) has announced substantial changes to our immigration system by way of a two prong strategy aimed at retaining highly skilled immigrants and increasing investment in the U.S. by foreign investors, reports U.S. Immigration lawyer Ashwin Sharma. The DHS announced this week that it would add to or modify established immigration processes so as to further President Obama’s commitments to:

1.  The Creation of a “Startup Visa,”

2. Strengthening the H-1B nonimmigrant professional program,

and

3. “Stapling” green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields, and make improvements to existing programs.

The DHS hopes that these and other proposed changes will attract and retain highly-skilled immigrants.

Ashwin Sharma, a member of the American Immigration Lawyers Association, applauds the DHS’s actions and calls for parallel changes within the U.S. Department of State’s Consular Posts. “We urgently require these changes and more, particularly with regard to professionals and investors.  It has never been more difficult for tourists, professionals or investors to legally enter this country and contribute to the American economy.  Our various immigration departments and agencies are interpreting the same laws differently.  The U.S. Consulates, for example, appear to be ignoring specific Congressional mandates.  Furthermore, there appears to be little communication between DHS and the Consulates which results in the inexplicable penalization of valuable immigrants.”

Mr. Sharma continued, “For example, to fill a specialty occupation with an H-1B professional worker, a U.S. employer may pay up to $5,500 just in government filing fees, provide hundreds or thousands of pages to DHS in support, make applicable attestations, answer up to one or two DHS queries and remain ready for a random on-site inspection.  However, even after obtaining an approval subsequent to this rigorous and expensive adjudication process, which will have to be repeated each time an employer files a case, an employer may learn that their H-1B employee(s) are barred from reentering the U.S. after a short visit abroad.  These employee(s) may be held abroad for months or years, away from their family, home and of course, job.  U.S. employers of those encountering such a situation often lose contracts, profits and incur harm to their corporate reputation.”

“A U.S. Consular officer may deny entry to the U.S. to anyone, even someone with a DHS approved H-1B.  Such a denial follows, generally, a two to five minute interview in which a Consular officer quickly flips through the same documentation previously scrutinized by the DHS.  Presently, the main reason for such denials for H-1B IT workers appears predicated on Consular Officers’ outdated interpretation of what constitutes an “employee-employer” relationship within the H-1B context.  This definition however, has been substantially modified by DHS and DHS Chief Napolitano since the original, restrictive definition was announced in January of 2010.  Unfortunately, no one seems to have issued the revisions to the Consulates.  Further, it appears that a substantial percentage of such H-1B visa denials may be improper.  This is because the Foreign Affairs Manual (“FAM”) guidelines for Consulates state that a U.S. Consular Officer may only deny a case on very specific grounds, that is, the discovery of new negative facts not previously known to DHS in the course of DHS’ adjudication.  For example, 9 FAM 41.53(d) states that,”

“…The consular officer must suspend action on this alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved.”

Mr. Sharma highlighted a selection in the FAM which indicates a Consular officer,

 “…must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition  process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”

Mr. Sharma noted that, “The FAM repeatedly emphasizes that DHS, the original adjudicator of the petition, should be given greater deference than Consulates in reviewing the qualifications of a particular alien for “H” status, and that Consulates should rely on DHS expertise, and not their own.  This is not only so because Congress explicitly and implicitly assigned “responsibility” and “authority” of making such a decision to DHS but also because of the complexity of H petitions in general.”

“By mandating a preliminary petition process, Congress placed responsibility and authority with Department of Homeland Security (DHS) to determine whether the alien meets the required qualifications for “H” status.  Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” 9 FAM 41.53 N2.1 Department of Homeland Security (DHS) Responsible for Adjudicating H Petitions”

Mr. Sharma stated, “Another unambiguous demand for Consulates’ deference to DHS is contained in 9 FAM 41.53 N2.2, under the heading entitled, “Approved Petition Is Prima Facie Evidence of Entitlement to H Classification”.  Subsection (a) of this section makes it abundantly clear that the Consulate or Consular officer should not make any adverse decision on an H-1B petition approved by DHS, unless the Consulate discovers (presumably material) information during the visa interview that was not available to DHS,”

“You do not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status.  The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.”

Mr. Sharma emphasized that it is “only if the Consulate discovers material not known to the DHS is it advised to issue a request for evidence in the following note (b),”

“If information develops during the visa interview (e.g., evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. “  

Mr. Sharma provided another example in 9 FAM 41.53 N2.3, “Referring Approved H Petition to Department of Homeland Security (DHS) for Reconsideration” which he stated “…reemphasizes an often ignored directive: that Consular officers,”

“… should consider all approved H petitions in light of these Notes, process those applications that appear to be legitimate, identify those applications which require local investigation, and identify those petitions that require referral to the approving U.S. Citizenship and Immigration Services (USCIS) office for reconsideration.  Refer petitions to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS.  You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”

Mr. Sharma concluded, “It is highly improbable that freshly discovered documentary evidence, both material in nature and unavailable to DHS at the time of original adjudication, could be discovered during the course of a typically rapid Consulate interview for the majority of H-1B petitions that have been denied recently.  Visa applicants and their employers obey the law, ‘wait their turn’ and pay the requisite fees but are often those most ill treated by our system.  These individuals are suffering harm because of the carelessness, ignorance and a lack of communication within and among our Immigration agencies, particularly at the Consular level.  This may be one of the major reasons why our economy suffers; tourists, students, investors and professionals are increasingly selecting emigration to Australia and Canada over the U.S. and its unpredictable, almost schizophrenic immigration system.  I welcome the DHS’ proposed changes but they will have little impact if the U.S. Department of State’s Consulates continue to ignore them.”