November 20, 2014

President Obama Expands Deferred Action and Provisional Waivers

President Obama announced tonight in very broad terms that he would expand "deferred action" to millions of undocumented immigrants beyond the DACA program of 2012 (Deferred Action for Childhood Arrivals). The new program, to begin in 2015, will benefit the following groups of people who choose to step forward out of the shadows for a less than perfect immigration status. Deferred action is NOT a green card/permanent residence, a visa, citizenship, amnesty nor legalization. It just defers or delays potential deportation for two years but does offer the opportunity to work during those three years.

Eligible Groups for Deferred Action:

1. Parents of US citizen or lawful permanent resident children on the date of the announcement (November 20, 2014). They cannot be "enforcement priorities" (i.e., certain criminals and others). The parent must have been continuously in the US since January 1, 2010.

2. Individuals who arrived in the US before turning 16 years old and before January 1, 2010, regardless of how old they are today. This is a big change from the 2012 DACA program that required individuals to have entered the before turning 16, resided continuously in the US since June 15, 2007, were in the US on June 15, 2012, and were under 31 on that date. The DACA group also had to be in school, working toward a GED or have graduated from high school. It's unclear whether there will be an education requirement for this new expanded group.

For both groups above, applicants will have to pass criminal and national security background checks, pay their taxes, and pay a fee.

Finally, the program won't start until well into 2015 as details have to be worked out and USCIS has to staff up and be trained. So, there is nothing to apply for now except the existing DACA program. Keep in mind, if the House of Representatives ever has the guts and the will to finalize and vote on an immigration bill, this program may not come to fruition if Congress enacts a bill covering the same group before the President's program kicks in. Stay tuned for further news on implementation.

Provisional Waiver Expansion

Provisional or stateside waivers are specific applications required in the green card process for those individuals who have a way to legally immigrate but must do so at a US consulate abroad because they are out of status in the USA. The waivers are needed to overcome a ground of inadmissibility due to a prior period of unlawful presence making the applicant subject to the three or 10 year bars when they leave the USA to go to the consulate. Applicants must show extreme hardship to a US citizen or permanent resident spouse or parent. Waivers are needed for other grounds of inadmissibility as well, but for other grounds, the individual must apply for the waiver only after the consular interview. This means being separated from family for six months or longer while waiting for the waiver to be adjudicated.

Provisional waivers to waive ONLY the unlawful presence bar have until now only been available to spouses and minor children under 21 of US citizens seeking to immigrate. They are filed in the US after approval of the visa petition but before going to the US consulate abroad. This allows families to stay together in the USA while the waiver is being decided. Consular appointments and follow up abroad is much shorter, minimizing the length of family separation.

President Obama's announcement tonight expands the group of people who can seek provisional waivers to spouses and minor children of permanent residents, and adult sons and daughters of US citizen parents.

Who Stands to Lose Under Obama's Announcement?

Anyone coming to the USA illegally or overstaying a visa since January 1, 2014 will be considered to be a high priority removable immigrant. It's less clear what the fate of those coming to the USA after January 2010 and before January 2, 2014 will be, but they will not benefit at all from deferred action except in some case specific limited circumstances, given that deferred action is available for a humanitarian or public interest reason.

Parents of youth who already received DACA are not covered under this announcement unless they fall under the categories above.

Beware of Scams

These programs are not available NOW except for the existing DACA program. Potential applicants should wait until the Department of Homeland Security announces the program is ready.

Beware of who is eligible to help you! The only people who may help select and complete forms and file cases on your behalf are the following:
1. US licensed attorneys in good standing (check with the state bar of any state)
2. Board of Immigration Appeals accredited organizations and representatives. See EOIR Roster and cross check with disciplinary list.
3. Law students working under supervision of a professor or licensed attorney
4. "Reputable individuals" with whom you have a pre-existing relationship and whose help you request (family, friend, clergy), who does not charge a fee, and who gets permission from USCIS.
5. Certain accredited officials (e.g., consular officer)

If you need free help, see http://www.justice.gov/eoir/probono/states.htm. See "Avoid Scams" which includes How to Find Legal Help.

If you can afford an attorney, besides this firm, you can find immigration attorneys who belong to the American Immigration Lawyers Association at www.ailalawyer.com.

For more information
See this Infographic from the White House.

See this fact sheet from the White House.

Check back here at Seattleimmigrationlawyerblog for more information as details as emerge. Also, check our other blog at www.bswasserlaw.com/blog for implementation and substantive law related matters as this program progresses in the next few months.

November 20, 2014

President Obama to Announce Executive Action Tonight

President Obama is scheduled to announce his plan for Executive Action on immigration tonight at 5pm PST. Most of the networks will NOT be carrying his speech. However, CNN, MSNBC, Telemundo and Univision among others will, although this could change later today. If you miss it, the White House will have a recording here. Most of the controversy between the Democrats and Republicans is over what to do with the millions of people living in the US without legal papers. However, Executive Action will hopefully also encompass some administrative fixes to the legal immigration system, both for family and business immigration. President Obama is also predicted to make some changes to enforcement and border security, which could mean more deportations and problems for certain classes of undocumented immigrants as well as for those trying to get to the US without proper papers.

Relief for more of the undocumented? Things to consider.

Whatever relief President Obama offers to a wider group of undocumented immigrants, people should be aware of these important points:

  • He cannot grant new classes of green cards (permanent residence), visas or citizenship, "amnesty" or any other type of legalization program. The most he can do is defer deportation, offer some procedural fixes that might help some people such as Parole in Place allowing more people to adjust status v. consular process (IF they have another legal way to immigrate).
  • Deferring deportation such as that previously given to DACA youth is just that - delaying or deferring deportation. Many of the youth who have received DACA will tell you that it has changed their lives in many ways because they were able to get work permits and then social security numbers resulting in other new opportunities such as college and jobs. However, they still have not immigrated in the legal sense; cannot sponsor relatives; travel is somewhat constrained; and it is only available in two-year increments. Participating in this program requires an analysis of risk to oneself and family members because it requires stepping forward out of the shadows and disclosing a lot of personal information. Of the expected one million DACA applicants, only about half of that applied. But even 500,00+ is still a significant number of people who chose to take a chance.
  • Whatever President Obama offers can be taken away by him or the next President. Whether that would be a good strategic move is another matter, and most advocates feel that is unlikely. But, no one knows for sure.
  • Opponents of President Obama have threatened to not fund the agencies that would carry out these programs, except that these programs are self funded through user filing fees. Opponents have also threatened to sue the Administration, which could result in the program getting tied up in litigation.
  • More importantly, however, whatever the President announces tonight, the program will not be implemented for several months, meaning Congress could still come up with a bill that fixes many things. But no one knows whether the end result of Congressional action, if we ever get it, will be more or less favorable to the undocumented population even though the Senate bill passed last year had a pathway to legal status.

While the undocumented population gets the bulk of the media attention tonight, it will be interesting to hear what President Obama plans in the way of legal immigration fixes to help families and employers, investors and entrepreneurs. In addition, his plans for increased enforcement could become more harsh. Stay tuned for more information. Check back to this blog and our other blog at www.bswasserlaw.com/blog.

October 27, 2014

Executive Action - Our Recommended Fixes

I previously posted two articles about the American immigration Lawyers Association's (AILA) letter to President Obama recommending administrative or Executive Action to fix the nation's immigration laws due to inaction by Congress. Here, I want to add some more ideas that could be accomplished by Executive Action that do not require an Act of Congress. By way of review, in my prior post, Executive Action - Business Immigration Fixes Needed, I discussed the recommendations made by AILA including:

  • Create Better Pathways for Immigrant Entrepreneurs
  • Amend the definition of "related or affiliated" for H-1B cap exempt purposes
  • Don't re-adjudicate established facts absent gross error, changed facts or fraud
  • Expand premium processing to all business visa categories
  • Don't discriminate by nationality in adjudications
  • Don't count derivatives in visa quotas
  • Create a pre-adjustment process for adjustment applicants in valid status who are waiting for the quota.

In my post, Executive Action - Family Immigration Fixes Needed, I wrote about AILA's recommendations:

  • Expand deferred action to other classes of individuals in the US illegally
  • Don't count derivatives toward the quota
  • Create a pre-adjustment process
  • Expand use of Parole in Place
  • Expand a more inclusive definition of extreme hardship for waivers
  • Finalize advance parole policy in light of Matter of Arrabally and Yerrabelly

Over the last couple of years, working with our clients, the issues below have come up that require fixes that would be either more humane, would simplify processes, or would be fairer. These are not just our own recommendations, but have come up in discussions with other immigration attorneys at CLEs or through listservs and the like. Some of these fixes would require new policy memos; some would require regulatory but not statutory change, and some would require more training of adjudicators with actual progress on the ground:

Business immigration fixes:

1. Extend the 240-day extension rule used for H-1Bs and L-1s to E-3 Australian visa holders needing extensions as well as to everyone with an Employment Authorization Document (EAD) seeking an extension of an EAD. There was a recent regulatory proposal for E-3s.
2. Define more specifically what is required for NAFTA TN software engineers, systems analysts, scientific technicians, and management consultants so that users of the TN program are not subject to widely varying interpretations by border officers.The same goes for NAFTA based L-1s.
3. Permit nonprofits (not just nonprofit research institutions) to benefit from cap-exempt status. Many nonprofits that do not conduct research do provide public benefits locally or nationally such that their workers should not be left out of the H-1B program due to the cap.
4. Amend the L-1 "adequate premises" regulation to accommodate telecommuting, executive or short term offices, incubators, and other newer methods of conducting work given available technologies that do not require traditional brick and mortar premises. Apply similar standards for H-1, E and O visas.
5. Authorize L-1 new offices for two years rather than one so there is time to develop business and new hires before the first extension of stay is needed.
6. While the H-1B annual cap is widely opposed and considered to be out of sync with the economy and business needs, while we have the cap until Congress changes it, splitting it in half or quarters during the year as is done with the H-2B program, would enable employers to pick the time of year to file besides once a year for a week in April. April only filings for jobs starting October 1 are not the only time employers need to hire people!
6. Make the DOL definition of "exceptional ability" (for Schedule A Group II) consistent with the more liberal USCIS definition for EB-2 cases.
7. Consider other types of compensation for H, L, O visa holders for founders of firms such as equity and stock interests. Amend the US Department of Labor regulations that allow for the same.
8. Extend work authorization to all H-4 spouses such as is available for L-2 and E visa spouses (also previously in a proposed regulation but limited to certain country nationals).
9. Use unused immigrant visas to shorten quota backlogs NOW.
10. Train and monitor adjudicators in the use of RFE templates that require analysis of specific evidence previously submitted for deficiencies. Prohibit use of boilerplate RFEs that do not bear on the facts at issue and require adjudicators to state the exact deficiency of the evidence already presented with options to meet their satisfaction.
11. Extend F-1 OPT in non-STEM occupations to 27 months (allows for trying for H-1Bs in two cycles in case not selected.)

Family immigration fixes:

1. Finalize DOS policy on Assisted Reproductive Technology (ART), in particular, updating the Foreign Affairs Manual to coincide with the January 2014 policy allowing gestational as well as genetic moms to transmit citizenship.
2. Eliminate the DOS policy in the Foreign Affairs Manual that requires a blood or genetic connection to transmit citizenship where the statute only says a child "born of" a US citizen (and another US citizen or LPR parent). Extend the holding of the Ninth Circuit Court of Appeals nationwide indicating that the transmission statute does not require a blood relationship where a nonbiological child is born to a married couple in wedlock provided if at least one parent is a genetic or a gestational parent regardless of who is transmitting citizenship. Modernize definitions and transmission of citizenship to accommodate modern methods of ART including use of surrogates.
3. LIberalize the hardship analysis for humanitarian reinstatement of visa petitions where the petitioner or principal beneficiary have died.
4. Allow all waiver applicants, whether visa processing abroad or seeking to adjust status to process waivers in the USA before or after interview (e.g., allow processing of waivers for known inadmissibilities ahead of interview.) Liberalize the "extreme hardship" standard.
5. Use unused immigrant visas to shorten quota backlogs NOW.
6. Require agencies to adjudicate certain applications within a specific period of time.
7. Allow families to use the K-3 process even if K-3 petitions are decided at the same time as K-1 petitions. In other words, do not allow the National Visa Center to force families into picking immigrant visa processing over K-3 status where petitions are decided at the same time.
8. Provide more transparency regarding cases held up for "administrative processing" where national security or criminal investigation are not the reasons for delays.
9. Provide more clear options and procedures for LGBT families processing immigrant visas abroad to use other consulates where their lives may be in danger in their own countries.
10. Formalize a policy stating that J-2 visa holders whose J-1 spouses/parents subject to the 2-year foreign residence requirement and who join the military under MAVNI do not also need to get waivers of the residence requirement or be forced to live abroad where the principal becomes a US citizen through MAVNI and is no longer required to get a waiver or live abroad.
11. Eliminate the new massive "family detention centers."

September 1, 2014

Executive Action - Family Immigration and Other Fixes Needed

This blog posts follows up to an earlier post, Executive Action - Business Immigration Fixes Needed, discussing the American Immigration Lawyers Association (AILA) letter to President Obama of August 6, 2014 requesting Executive Action. AILA recommended additional fixes to family immigration, prosecutorial discretion and enforcement related issues that could be achieved administratively in the face of Congressional inaction on statutory changes.

AILA states that "the guiding principle for administrative actions should be to advance our national interest, which includes: supporting family unity, promoting economic growth, and improving processes."

Expand Deferred Action.

AILA advocates expanding the 2012 Deferred Action for Childhood Arrivals (DACA) program to a wider group including:

  • Parents of U.S. citizens;
  • Parents of DACA-eligible individuals; and
  • Individuals who have resided in the U.S. for three years or more.

Further, DACA should include work authorization, as in the present DACA program, but USCIS should tweak the requirement for advance parole (a travel document) to be based on a wider range of travel needs beyond just "emergent circumstances."

As a reminder, deferred action is NOT "amnesty; it is NOT a visa; it is NOT a green card or citizenship. It is a temporary fix given in two-year increments prohibiting deportation of individuals who are out of status until Congress gets around to more fundamental statutory changes for this population.

Do Not Count Derivatives Toward the Overall Visa Quotas.

This was mentioned in the business immigration context in the prior post, Executive Action - Business Immigration Fixes Needed. By not counting derivative spouses and children (single and under 21), more visas would be freed up for principals stuck in family based quotas (every category/every country) that could result in shorter backlogs.

Expand the Use of Parole-in-Place (PIP).

Section 212(d)(5) of the INA provides the Secretary of Homeland Security with the authority to parole into the U.S. temporarily, under such conditions as he or she may prescribe, on a case-by-case basis, for urgent humanitarian reasons, or significant public benefit, any alien applying for admission to the United States. Parole is like a legal fiction - the body is here, the status is not of nonimmigrant, permanent resident or US citizen, but the person is here with a defined permission under the circumstances above. Parole is very important as it is one of the grounds besides a formal admission in which someone can complete their green card process in the USA called "adjustment of status." Right now, most people who entered illegally cannot file for adjustment and must instead consular process their green card application, whether business or family based. Leaving U.S. to go to the consulate then triggers the 3 or 10-year bar to readmission, thus requiring a waiver of inadmissibility and further delaying the case. A grant of parole in place would allow a person to avoid consular processing and the waiver in most cases. And it would be useful for those who do not have qualifying members for the waiver nor proof of extreme hardship. (See below.)

Currently, USCIS only uses PIP for family members of active duty and veteran military personnel. But, AILA advocates that its use be expanded to other non-military related individuals with US citizen or permanent resident parents, children or spouses.

Continue reading "Executive Action - Family Immigration and Other Fixes Needed" »

August 13, 2014

Executive Action - Business Immigration Fixes Needed

On August 6, 2014, the American Immigration Lawyers Association sent a letter to President Obama recommending administrative fixes or executive action to tweak the business immigration system in light of Congressional failure to pass an immigration reform bill. The list of recommended actions are within the realm of administrative law and existing statutes. Only Congress can change or amend statutes, including underlying visa categories, requirements and numbers. However, within the confines of those statutes, the administration, charged with carrying out the law, can make regulatory or policy fixes so long as they are consistent with statute. All federal agencies routinely issue implementing regulations and policy memos interpreting statutes and regulations. However, there is only so much the executive branch can do short of Congressional action required to change statutes. This post focuses on AILA's recommended administrative fixes for business immigration.

Create Better Nonimmigrant Pathways for Entrepreneurs.

It has become harder for entrepreneurs to use the current immigration categories. In particular, the H-1B category requires an "employer-employee relationship" that USCIS has interpreted in a January 2010 memorandum. Historically, immigration law has treated a corporation as an entity separate and apart from its shareholders, permitting an owner-entrepreneur to found a corporation and the corporation to petition for the owner as an employee. The 2010 memorandum interprets the term "employer-employee relationship" for H-1B purposes to require the entrepreneur to give up significant control to a corporate board or to some other management entity. This is not the modern way of forming and growing start-ups. It is especially difficult if the person with the big idea and a big dream for a business is the foreign national who is forced to give up control of his or her dream. This can be a turn off to foreign entrepreneurs wanting to grow a company in the United States. AILA advocates that USCIS abandon this interpretation and adopt more flexible factors that can establish an "employer-employee relationship" that exist elsewhere in the law. This is important nationally to attract entrepreneurs. For example, in Seattle, Washington State, 19% of businesses are owned by foreign nationals (and 15% statewide).

AILA also advocates that USCIS enable more entrepreneurs to use the O-1 "extraordinary ability" nonimmigrant category and EB-1 extraordinary ability category by formally recognizing entrepreneurship as a valid basis for the O-1 and EB-1. This should include providing better information on the types of evidence that are unique to entrepreneurs that may establish eligibility for O-1/EB-1 status. Further, AILA advocates that entrepreneurship, job creation and potential economic development be recognized as favorable factors in adjudicating EB-2 "National Interest Waiver" (NIW) petitions.

Amend the Definition of "Affiliated or Related" to Provide Greater Relief from the Restrictions of the H-1B Cap.

USCIS received approximately 172,500 cap-subject H-1B petitions during the one-week April 2014 filing period for FY2015. The annual cap is only 65,000 visas (plus 20,000 for those with US Masters degrees.). These numbers are set by statute, i.e., Congress. Thus, USCIS had to hold a lottery. The H-1B program is a game of chance when the economy is growing and employers are hiring, with no predictability for employers to plan staffing. Further, there is only a one week period in April in which to file with this type of demand. Even then, if your candidate is selected in the lottery, the job cannot begin in H-1B status until the October immediately following the April filing period. What if you found your candidate in June or August or December? You'll have to wait until the following April to file for a job that can't begin until October! It's outrageous! It's hard to keep a straight face as an immigration lawyer when trying to explain the ridiculousness of this situation to a baffled employer who has found the perfect candidate to work on a project NOW.

Thus, AILA argues, until Congress fixes the numbers, USCIS could ease the high demand for H-1Bs loosening up its interpretation of cap-exempt qualifying nonprofit entities. Currently, they must be deemed to be "affiliated or related" to institutions of higher education, "through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary." This definition is very narrow and impacts teaching hospitals and other nonprofit entities. A broader definition is needed because more universities are spinning off private start-ups including, from incubators, that help grow, mentor and nurture new businesses in our communities.

Continue reading "Executive Action - Business Immigration Fixes Needed" »

May 30, 2014

Administrative Immigration Reform Delayed by President Obama

On March 13, 2014, President Obama called for a review of the Department of Homeland Security's (DHS) enforcement practices. However, this week he announced that he would delay this effort until summer's end if Congress does not pass legislation in the remaining few legislative sessions before then. Hoping to extend an olive branch to the more restrictionist GOP House members, the President is hoping to give them a window of opportunity to take up immigration reform legislation in the coming weeks.

Almost a year ago, the United States Senate passed an immigration reform bill, S.744. But, the House of Representatives has never brought a reform bill for a vote on the floor. This is due in part to a deeply divided Republican party, where a minority of anti-reform representatives is holding the issue hostage in no small part because of mid-term elections. Most of these anti-reform Republicans are from gerrymandered, mostly white districts who hope to be re-elected or to elect more Tea Party favorites whose mantra is to oppose immigration benefits and to increase enforcement.

President Obama is caught in the middle, however. He has failed to satisfy immigrant advocates by his inaction in reviewing and humanizing deportation policies and improving immigration benefits adjudication trends. Yet, by merely suggesting he would review the policies, the Republicans have used their frequently used excuse to do oppose anything the President does by declaring him untrustworthy in implementing the law. Nonetheless, every day that goes by when Congress does not act on immigration reform, more families are being torn apart under a broken immigration system; businesses cannot hire the workers they need; and DHS will detain and deport another 1,000 people a day--many of whom could apply for legal status if reform is enacted.

Only Congress can control the categories of immigration and the numbers, the grounds for removal and the funding of the agencies involved. However, the President, through his executive authority, may act to prioritize enforcement, and to amend or change regulations that are consistent with existing statute. Even a change of policy or procedure must be consistent with statute, but there is often room for interpretation, adjustment for procedures and discretion to prioritize activities within the budget given. Thus, there are three main areas where the President could use his executive authority via the implementing agencies (e.g., US Department of Homeland Security and/or US Department of State): enforcement reform, affirmative relief from deportation, and immigration adjudications.

The American Immigration Lawyers Association and other immigration advocates are asking for these administrative reforms:

Εnforcement:
DHS is removing thousands of people each year who pose no threat and have strong ties to our country, including many with U.S. citizen and lawful permanent resident family members. More than 40 percent of those removed do not have any criminal conviction; many are deported solely for committing immigration status violations. Furthermore, fewer than 30 percent of removals occur in immigration court; the rest are deported without basic due process. See Misplaced Priorities: Most Immigrants Deported by ICE in 2013 Were a Threat to No One. Prosecutorial discretion should be exercised more robustly, and every case, including border zone apprehensions, should be screened for family ties and other equities. Both detainer practices and the skyrocketing use of federal immigration detention should be dramatically curtailed in favor of constitutionally sound, humane and less-costly alternatives. DHS must increase accountability and transparency, especially over enforcement and deportations in the exceedingly wide region where Customs and Border Protection operates.

Affirmative relief from deportation: DHS should use its legal authority to designate categories of people for whom it will provide temporary affirmative relief from enforcement action, as it did in 2012 with Deferred Action for Childhood Arrivals (DACA). The use of deferred action or parole in place would be appropriate for: 1) the close family of U.S. citizens, lawful permanent residents, and recipients of Deferred Action for Childhood Arrivals (DACA); 2) individuals who have long resided in the United States or have other strong community ties; and 3) certain lawful permanent residents who are subject to removal.

Immigration adjudications: U.S. Citizenship and Immigration Services too often adopts the most miserly interpretation, resulting in unnecessary delays or denials of valid family and business petitions. This approach has hurt business development and growth and kept apart families who are petitioning for reunification. DHS needs to restore the more balanced interpretation of the law historically applied that will help businesses, families and our economy.


April 30, 2014

USCIS Solicits EB-5 Program Feedback

US Citizenship and Immigration Services (USCIS) is soliciting public feedback about the EB-5 immigrant investor program until May 8, 2014. USCIS established an "Idea Community" several months ago to broaden its outreach to stakeholders on a variety of topics. In a recent EB-5 stakeholder's meeting held April 23, 2014, USCIS said it would solicit more input about the program overall as it contemplates forthcoming regulatory changes designed to address these issues: a) combating fraud, b) improving current regulations, c) substantive eligibility requirements and d) procedural filing requirements. This is a chance to be an advocate to help shape the future of this program. To participate in the Idea Community, however, one needs to set up an account with the online system. Once logged in, look for Active Campaigns on the left, which lists the EB-5 program. Participants can start an idea thread, vote in favor or against other ideas, and otherwise provide further commentary.

A quick review of the postings shows that many of the comments have to do with delays, both for the initial I-526 petition and the I-829 petition to remove conditions, both of which are running at about 11 months. Similarly, there are complaints about the lengthy time to adjudicate regional center project applications. Other issues include requiring more oversight about transfer of funds and authentication of documents, especially from China, use of SEC FINRA and Reg D rules, documentation of job creation, need for rules about transitioning between E-2 nonimmigrant treaty investor to EB-5 permanent investor status, and the need for premium processing.

April 10, 2014

USCIS Receives 172,500 H-1B Petitions

The H-1B cap situation is even worse than last year, which means employers are continuing to hire. USCIS announced today that it received 172,500 H-1B petitions for 85,000 available visas, compared to 124,000 last year. These were received at USCIS during the first week of April for the FY2015 filing season for specialty occupations with selected employees scheduled to begin work on October 1, 2014 (unless employees already have some underlying work authorization). Because the number of petitions far exceeds the supply, there will be a lottery. Unselected cases and fees will be returned to the petitioners or their attorneys. Such a large number of applicants for so few visas reflects yet again, that the H-1B cap introduced in the 1990s simply doesn't work or match the needs of the economy.

During the recession, the number of filings was far fewer than in growth years. But even then, the cap was reached in a few months instead of a few weeks or a few days. Congress has quite the disconnect with employers' needs. On the other hand, this year's group of selectees may be pretty lucky for reasons other than numbers. S. 744 passed by the Senate last year, while raising the cap, would have also made the program much harder for employers to deal with in lots of other ways, especially those employers who place workers at third party sites. What Congress should really do, in this author's opinion, is make a separate set of rules and numbers for third party placements so that their unique situation does not bleed into the needs of the majority of employers who do not conduct third party placements. Whatever Congress ends up doing in the future, if anything, if ever, it should be a program that can be easily understood, that is useful to employers, protects immigrant and US worker rights alike, and makes it predictable for employers to be able to know when and how they can assign H-1B workers to timely projects. Most employers are dealing with a fast paced environment, with quickly changing products, technologies and services over short life cycles. They need a predictable work visa system that matches the needs of employers all year long to staff important projects.

What H-1B filings are still available for the rest of the year?

  • H-1B extension cases;

  • Requests for change in the terms of employment for current H-1B workers;

  • Requests by current H-1B workers to change employers (but check with counsel about changing from cap-exempt to cap cases);

  • Requests by current H-1B workers to work concurrently in a second H-1B position.

  • Applications to work for cap-exempt employers or in cap-exempt jobs and those affiliated or related to cap-exempt employers

  • Applications to perform labor and services in Guam and the Commonwealth of the Northern Mariana Islands. (This group has its own cap and cases must be filed before December 31, 2014.)

Of course, there is always looking into alternatives to H-1B visas such as E-3s for Australians, Os, TNs, Ls, E-1/E-2 visas, and other categories as well as work authorization through spouses in categories that permit dependent work authorization or other family based immigration. And, there are special rules for Chilean and Singaporean H-1B1 applicants.

April 10, 2014

Immigration Lawyers Meet With Congress in D.C. Today

Immigration lawyers from around the U.S. are in Washington, D.C. today to visit their legislators asking them to vote on immigration reform proposals. Regardless of political persuasion, most people agree the current immigration system is dysfunctional and the laws need to be brought into the 21st century to meet the needs of families, businesses and the country as a whole. Immigration advocates argue that a common sense, balanced reform proposal should include:

  • Safeguarding the borders while also respecting the U.S. Constitution and fundamental values; ensuring that enforcement is done in a humane and balanced way that complies with due process, including protection of detainees, families and children, and the right to fair hearings and counsel in immigration court. Any enforcement program should have achievable and measurable objectives, plus better and consistent training of border agents.
  • A family based legal immigration system that unites loved ones, including adult sons and daughters without regard to age, the siblings of U.S. citizens, and LGBT family members. Reforms should also reduce or eliminate the backlogs, thereby making "getting in line" more meaningful and realistic.
  • A business based legal immigration system that allows all types and sizes of employers to have access to workers through an updated and efficient work visa system for the 21st century. This would accommodate the workforce and modern ways of doing business, with built in protections for immigrant and U.S. workers. This should include adding new visa categories and numbers, fixing existing visa and green card options, and reducing the backlogs so there is "a line to get into." Further, employers need an employment verification system that they can understand, using a reliable government database, and involving simple ways to document work authorization status.
  • A legalization program for the undocumented population that is wide, inclusive, and provides an opportunity for citizenship after a reasonable period of time rather than endless years of a meaningless status.

Immigration advocates argue that reform of the nation's immigration laws on all of the issues above must be done at or near the same time, whether in a comprehensive bill or in several piecemeal bills. Each of the components above is intertwined with the others. Further, immigration reform would benefit the economy, according to the Congressional Budget Office (CBO). The CBO previously estimated that the Senate's reform package, S. 744 passed last June, would reduce the federal deficit by $158 billion over the next 10 years and $686 billion over the following decade.

For those who argue the Administration has not done enough to deport people, the statistics just do not bear that out. The U.S. has deported 400,000 on average per year in this Administration, soon to be two million individuals since President Obama, known by some as the "Deporter in Chief," took office. This has cost the taxpayers $2 billion annually. Removals without due process, in other words, without a hearing before an Immigration Judge, now account for 70% of all annual removals. And of those, most do not meet ICE's stated priorities. For more information on the details of these statistics as they relate to ICE's enforcement priorities, see Misplaced Priorities: Most Immigrants Deported by ICE in 2013 Were A Threat to No One. Just how the deportation numbers shake out is a matter of controversy, but for a good discussion of the reality, see The Challenge of Measuring Immigration Enforcement in the United States.

Continue reading "Immigration Lawyers Meet With Congress in D.C. Today" »

April 3, 2014

Kauffman Studies Show Immigrant Entrepreneurs Make Economic Contribution to the USA

Here at the Seattle immigration Law Office of Bonnie Stern Wasser, we enjoy working with entrepreneurs. Whether owned by Americans who seek to hire global foreign talent, or foreign nationals seeking to open or expand a business in the U.S., it is important for entrepreneurs to understand the range of business immigration options and startup visas for employees, executives and investor entrepreneurs as well as the impact they have on the local and national economy.

The Kauffman Foundation just released two new reports on immigrant entrepreneurs. The first one is The Economic Case for Welcoming Immigrant Entrepreneurs. The report confirms that immigrants make up a disproportionately higher rate of entrepreneurs than U.S. born owners of startups. A statistic from 2010 shows that 40% of Fortune 500 companies were started by immigrants or first generation Americans. In 2012, there were twice as many immigrant entrepreneurs than native-born Americans, with 27.1% of them being immigrants in 2012, up from 13.7% in 1996. Among engineering and technology companies started in the U.S. between 2006 and 2012, 25% had at least one key founder who was an immigrant.

In terms of job creation and economic impact, the Kauffman study found that:

  • "Immigrant founded engineering and technology firms employed approximately 560,000 workers and generated $63 billion in sales in 2012.

  • 24 of the top 50 venture-backed companies in America in 2011 had at least one foreign-born founder.

  • Immigrant founders from top venture-backed firms have created an average of approximately 150 jobs per company in the United States."

In the second Kauffman report, Lessons for U.S. Metro Areas: Characteristics and Clustering of High-Tech Immigrant Entrepreneurs, the authors found that 20% of the high-tech work force is made up of immigrants, while 17.3% of high-tech entrepreneurs were immigrants between 2007 and 2011, up 13.7% percent and 13.5% percent, respectively, from 2000.

In the last decade, there was a 64% increase in the number of self-employed immigrants in high-tech industries compared to a 22.6% increase of U.S.-born self-employed founders in high-tech. Of the immigrant entrepreneurs in the study, most were working in the fields of semiconductor, other electronic component, magnetic and optical media, communications, audio/video equipment, and computer science-related sectors, with these concentrations of high-tech primarily in 25 cities (including Seattle and Portland here in the Northwest).

Foreign Entrepreneurs in Washington State
Here in Washington, another report, Washington: Immigrant Entrepreneurs, Innovation and Welcoming Initiatives in the Evergreen State by the American Immigration Council Policy Center shows:

Continue reading "Kauffman Studies Show Immigrant Entrepreneurs Make Economic Contribution to the USA" »

March 26, 2014

House Dems Want Vote on Immigration Reform Bill Now

Democrats in the House of Representatives are trying to force a vote on H.R. 15, a comprehensive immigration reform bill, introduced by House Democrats last year. H.R. 15 models S. 744 passed last June by the full Senate. In an unusual maneuver called a "discharge petition," the House would need 218 votes to force a vote on H.R. 15. Although the G.O.P. members introduced a set of immigration reform "principals," they have not voted on any immigration reform bills at all, whether comprehensive in nature like H.R. 15, or any of the "piecemeal" bills their principals in fact promoted as a way to tackle reform efforts.

Discharge petitions have been used in other areas (e.g., unemployment insurance, raising the minimum wage). If enough signatures are received, it would force a vote on H.R. 15 even if the House majority leadership opposes. As of March 26, there were only 200 co-sponsors. Even if the petition does not get enough signatures, the Democrats are putting more pressure on the G.O.P to make the House do something this term on immigration reform.

Meanwhile, President Obama supported the Democrats' efforts force a vote on the issue. But some immigration activists feel the discharge petition is more of a stunt than anything helpful that the Administration or Congress could do to stop the deportations. President Obama, also known as the "Deporter in Chief" by some, has been responsible for record-breaking deportations or removals, (depending upon how one does the counting). The Administration held a meeting earlier in the month with immigration advocacy groups to determine what else he could do within the bounds of his authority, but he mostly punted to Congress, which has the authority to make bold changes to the nation's immigration laws.

March 12, 2014

L-1B Denial and RFE Report Impacts Entrepreneurs

A March 2014 report by the National Foundation for American Policy shows that USCIS has issued more denials and Requests for Evidence (RFE) in recent years for L-1B multinational specialized knowledge employees. The statistics contradict the outreach efforts former Director Mayorkas made to the business and entrepreneur community through the Entrepreneurs in Residence program, and an entrepreneur-focused new web portal called Entrepreneur Pathways. Granted, it is up to the U.S. Congress to bring business immigration categories and requirements into the modern world, and they have failed to do so for decades. But, Director Mayorkas' push to make the existing categories and regulations more user friendly hasn't filtered down to the adjudicators on the ground that actually decide these cases.

A good portion of the denials involve Indian L-1B specialized knowledge cases, due largely to the government's adversity to IT consulting firms placing technical workers at third party sites. However, the report shows a dramatic increase in denials overall from 7% in 2007 to 34% in 2013. Meanwhile, for 2013, there were 17,723 L-1B petitions received, of which 8,363 (47%) received RFEs. 6,242 of the petitions were denied while 11, 944 (67%) were approved. Therefore, while the denials and RFEs have gone up, still a majority of cases are granted, though not the majority there once was.

Unfortunately, this trend reflects adjudicator hypersensitivity about fraud, not just with small companies, but with big companies, too, given the number of RFEs. It adds considerably to the cost of pursuing an L-1B case because of the extra time and effort required to reply to RFEs, most of which are boiler plate, "everything but the kitchen sink" lists of questions. Experience with RFEs often reflects inconsistency among adjudicators. Sometimes it appears the adjudicator hasn't read the application (e.g., the questions ask for things already submitted); or that parts of the application must have been lost in the mail room (e.g., the questions ask for things already submitted that appear the adjudicator never saw or read); or the adjudicator misunderstands the request (e.g., the questions ask for explanations about manager or executive status, not specialized knowledge); or the adjudicator misapplies the law (e.g., asks questions pertaining to another category not requested.) Occasionally, the questions seem to reflect that the adjudicator read the application and doesn't feel comfortable granting a case yet unless some more "i"s are dotted and "t's" are crossed (e.g., more of the same categories of evidence are submitted in addition to what was already submitted.)

Most RFEs state "the information you submitted is insufficient." The adjudicator fails to state what information is insufficient or how, giving petitioners little opportunity to understand just what the issue is. This was just the type of RFE problems Director Mayorkas tried to fix when the organization created new RFE templates in other visa/green card categories. There, the adjudicators were required to comment directly about the evidence submitted and the specific deficiencies at hand. In fact, headquarters was supposed to have come out with adjudication guidelines for L-1 visas and never did. Why those same principals don't apply to all types of cases is the big question.

On the flip side, RFEs can be useful, giving petitioners another chance to submit more information not previously provided or available. Just because a petitioner receives an RFE, doesn't mean the case will be denied. In fact, most are approved, which may mean the adjudicators just want a better record. However, the long and the short of RFEs is that it takes up everyone's time and money, adjudicators included. Further, the inconsistencies among adjudicators and cases make it unpredictable for employers to know which cases will make it through favorably. The substantial delays involved make it unpredictable for employers to know when or if the employee will be available to work. This is particularly important for employers with time sensitive projects and quick product or service development cycles.

At a time when government should be encouraging the development of job growth, cracking down on L-1B petitioners does not make sense. Obviously, there will be some bad apples - or there will be poorly prepared cases. But, treatment of the bad apples should differ with regard to the treatment of quality companies, regardless of size, and their highly specialized employees. L-1 visas were designed in the first place to foster multinational growth of companies in the USA that in turn foster further direct and indirect job growth and international trade.

March 4, 2014

March 31, 2014 Deadline to Reopen Denied DOMA Cases

March 31, 2014 is the deadline to reopen I-130 visa petitions that were denied by USCIS prior to the US Supreme Court's ruling in the United States v. Windsor case in June 2013. Specifically, the petition must have been denied based on Section 3 of the Defense of Marriage Act (DOMA) that the US Supreme Court held to be unconstitutional. Many of these cases were reopened by USCIS on its own. But, if you haven't heard directly from them already, it is important to make contact with the agency either directly or through your attorney before March 31, 2014.

USCIS states the following in its FAQs.

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do?

A5. USCIS will reopen those petitions or applications that were denied solely because of
DOMA section 3. If such a case is known to us or brought to our attention, USCIS will
reconsider its prior decision, as well as reopen associated applications to the extent they
were also denied as a result of the denial of the Form I-130 (such as concurrently filed
Forms I-485). USCIS will make a concerted effort to identify denials of I-130 petitions that
occurred on the basis of DOMA section 3 after February 23, 2011. USCIS will also
make a concerted effort to notify you (the petitioner), at your last known address,
of the reopening and request updated information in support of your petition.

To alert USCIS of an I-130 petition that you believe falls within this category,
USCIS recommends that you send an e-mail from an account that can receive
replies to USCIS at USCIS-626@uscis.dhs.gov stating that you have a pending
petition. USCIS will reply to that message with follow-up questions as necessary to
update your petition for processing. (DHS has sought to keep track of DOMA
denials that occurred after the President determined not to defend Section 3 of
DOMA on February 23, 2011, although to ensure that DHS is aware of your denial,
please feel free to alert USCIS if you believe your application falls within this
category.)

For denials of I-130 petitions that occurred prior to February 23, 2011, you must
notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen
your I-130 petition. Please notify USCIS by sending an e-mail to USCIS at USCIS-
626@uscis.dhs.gov and noting that you believe that your petition was denied on the
basis of DOMA section 3.

Once your I-130 petition is reopened, it will be considered anew--without regard to
DOMA section 3--based upon the information previously submitted and any new
information provided. USCIS will also concurrently reopen associated applications as
may be necessary to the extent they also were denied as a result of the denial of the I-130
petition (such as concurrently filed Form I-485 applications).

Additionally, if your work authorization was denied or revoked based upon the denial of
the Form I-485, the denial or revocation will be concurrently reconsidered, and a new
Employment Authorization Document issued, to the extent necessary. If a decision
cannot be rendered immediately on a reopened adjustment of status application, USCIS
will either (1) immediately process any pending or denied application for employment
authorization or (2) reopen and approve any previously revoked application for
employment authorization. If USCIS has already obtained the applicant's biometric
information at an Application Support Center (ASC), a new Employment Authorization
Document (EAD) will be produced and delivered without any further action by the
applicant. In cases where USCIS has not yet obtained the required biometric
information, the applicant will be scheduled for an ASC appointment.

If another type of petition or application (other than an I-130 petition or associated
application) was denied based solely upon DOMA section 3, please notify USCIS
by March 31, 2014, by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov as directed above.
USCIS will promptly consider whether reopening of that petition
or application is appropriate under the law and the circumstances presented.

No fee will be required to request USCIS to consider reopening your petition or
application pursuant to this procedure. In the alternative to this procedure, you may file
a new petition or application to the extent provided by law and according to the form
instructions including payment of applicable fees as directed.


March 1, 2014

DACA Status Expiring Soon? Prepare for Renewals

USCIS has released some preliminary guidance about the first batch of DACA recipients approaching the end of their first two years who received DACA from ICE (Immigration Customs and Enforcement) between June 15, 2012 and August 15, 2012 because they had cases in removal proceedings or were detained initially. These individuals must file for an initial DACA application within 120 days of their status expiring. They must apply as if for the first time, providing proof that they meet all of the relevant guidelines. These individuals must file form I-821D, the work permit application (I-765WS), and provide the filing fee of $465.00 and photos. Failure to file early within the 120-day period and on time, could result later in the accumulation of unlawful presence, which is important for future immigration if there are new opportunities or immigration reform. Note that USCIS has not yet revised the I-821D form for renewals but is currently seeking comments for a new form. Therefore, use the old form until the new one is available. More information for this group of ICE-granted DACA recipients can be found here.

Most DACA recipients, however, were approved by USCIS, not ICE. For this group, USCIS has not yet posted renewal guidelines, but expect them to do so soon. Stay tuned and visit this blog or the USCIS website frequently.


February 28, 2014

Seattle Opera Performs "The Consul"

I had the privilege of seeing the Seattle Opera perform "The Consul." This Gian Carlo Menotti opera, which runs through March 7, 2014, deals with the frustration and torment of freedom and opportunity seekers everywhere trying to apply for visas and the bureaucracy they face. Althoughneither the location nor the government involved is mentioned in this opera, it is set in the 1940s or 1950s. Menotti's idea for the opera was inspired by a New York Times article about a woman from Poland who committed suicide at Ellis Island after she was refused admission to the USA.

The issues in The Consul are the same today and accurately reflect what I hear from people every day who have been denied visas around the world: they feel they are treated briskly ("Next!"); no amount of paperwork is ever enough; their personal stories are not heard (only do you qualify or not); and that visas tend to be issued to the wealthiest of individuals. In the opera, the consular Secretary pronounces: "These photos are not the right size." "This paper must be notarized." "No one is allowed to see the Consul. The Consul is busy." "I don't see how we can help you." "I can't make an exception. It would upset our system."

The music is interesting though it can be a bit disconcerting given the somber story. However, the lyrics are spot-on from my perspective based on what I know about the visa application process.

Just imagine yourself today in places like Syria, Ukraine, Nigeria and other trouble spots around the world, where US consular officers and those of other countries are inundated with people pleading for visas and a means to escape. Somehow, the consular staff must also protect themselves (their jobs and their emotions) from caring too much about others 24/7. To be fair, consular officers have a very hard job to do. They often have to make quick judgments about a person (though you would think by telling people to come back over and over again, they would get to know a person well). To read some interesting blog posts from the consular officers' points of view (vetted of course, since it is a government site), see Dipnote. Another interesting site, is Consular Corner on Facebook run by my colleague in Israel, Lliam Schwartz. The Consul raises the question, whether the Secretary will break the rules and do the right thing.

Back to the opera, the long and the short of it is, "bureaucracy and totalitarianism can close every border except one." And that one is the soul. As Magda sings in an aria as the lead woman pleading her case for a visa so she can join her husband who has escaped:

"The day will come, I know, when our hearts aflame will burn your paper chains! Warn the Consul, Secretary, warn him: that day neither ink nor seal shall cage our souls. That day will come, that day will come."