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."
February 22, 2014

Seattle Attorney Wasser Speaks on National Interest Waivers at NW AILA Conference

I had the pleasure and honor to speak on a panel about EB-1 and EB-2 permanent residence categories at the annual Northwest American Immigration Lawyers Association Conference held in Portland on February 20-21, 2014. My co-panelist, Matthew McClellan from Oregon, covered the three main subcategories in the employment based First Preference (EB-1): "extraordinary ability" foreign nationals, outstanding researchers and professors, and multinational managers and executives. I covered EB-2 PERM-based advanced degree and exceptional ability categories, as well as National Interest Waivers for advanced degree professionals and those of "exceptional ability", plus Schedule A, Group I physical therapists and Schedule A Group II exceptional ability immigrants in the arts and sciences.

Of particular interest and enjoyment to me is working on National Interest Waiver (NIW) cases. NIW means the government will waive the usual requirement that there be a US employer, job offer, and labor market test for "willing, able and qualified US workers". (Note that for NIW cases, although a US employer and job offer is not required, the applicant must show he/she has offers of work in the US in the field of endeavor at issue. One cannot simply meet the criteria but not plan to work in the field of endeavor.)

Congress never specified what the requirements are to meet the NIW standard, and USCIS/legacy INS never implemented regulations to define NIW requirements. But, in a precedent decision, NY Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Comm. 1998), the Administrative Appeals Office laid out a three-part test that has been used ever since:

1. The field of endeavor or proposed work must be of "intrinsic merit." Note, NIW cases are for work in the sciences, business and arts, all of which can be construed rather broadly.

2. Second, the work must be national in scope. This can be tricky where the work to be performed is strictly local or will have just local impact.

3. The third and hardest prong of the NYSDOT test is to show that it is in the national interest to waive the labor market test (labor certification or "PERM"). Stated otherwise, it is not in the national interest to require PERM because the applicant provides a "significant benefit to the field of endeavor"; has a "past history of demonstrable achievement with some degree of influence on the field as a whole;" and is likely to "serve the national interest to a greater extent than others with the same level of education, training and/or experience."

In sum, the applicant's past impact on the field of endeavor should be proven such that it is highly predictive the applicant will continue to make a future impact on the field. Further, it is not enough to show a shortage of workers in the field because that is what PERM is for - to test the US labor market. Nor is it enough to show the applicant has a unique set of skills. Indeed, it is important to show through experts or peers in the field that the person has made some significant contributions to the field such that he or she is likely to do so again in the future. Keep in mind that PERM is about finding applicants who meet the MINIMUM qualifications listed in the job opportunity. Here, we are focused on major or significant contributions already achieved. (By contrast, extraordinary ability workers and outstanding professors and researchers must show a higher level of achievement: original contributions to the field or international achievements.)

If the NIW standards can be met, it applies to individuals in the professions with at least advanced degrees (masters or higher depending upon the field) OR to those who are of "exceptional ability." A person is of exceptional ability if the applicant can prove "a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business." Further, persons of exceptional ability must show they will "substantially benefit prospectively the national economy, cultural or educational interests or welfare of the USA."

This standard would be in addition to the third prong for the NIW noted above. To prove exceptional ability, the applicant must show at least three of the following criteria:

- Academic records related to the field of exceptional ability
- At least 10 years of full time experience in the occupation for which the foreign national is being sought
- License to practice the profession if required
- Salary/remuneration demonstrating exceptional ability
- Membership in professional associations
- Recognition for achievements and significant contributions to the industry or field
- Other comparable evidence

Continue reading "Seattle Attorney Wasser Speaks on National Interest Waivers at NW AILA Conference " »

February 12, 2014

New Form I-9 Videos Posted by USCIS

USCIS has released some new instructional videos to help employers and their employees properly complete Form I-9s at time of hire. Since the passage of the Immigration Reform and Control Act of 1986 (IRCA), it has been the law every employer must document on Form I-9 the work permission status of employees hired since November 6, 1986. The law applies to the hiring of US citizens as well. Employers are subject to audit (Notices of Intent to Inspect) that can result in fines for failure to complete I-9s, failure to properly complete I-9s and for "knowingly hiring unauthorized workers." In egregious cases, employers can be prosecuted for "patterns or practices of knowingly hiring unauthorized workers." In addition, employers are prevented from discriminating against employees on the basis of national origin or citizenship status except in limited circumstances.

A few good resources for employers include:
1) Form I-9 and instructions. For more comprehensive information, see I-9 Central
2) M274 Handbook for Employers
3) Immigration and Custom Enforcement 's (ICE) list of potential penalties. ICE conducts I-9 inspections. (Scroll down for the chart.)
4) Examples of high profile penalties/settlement agreements (ICE press releases) (Scroll down)
5) Preventing anti-discrimination and best practices from the US Department of Justice, Office of Special Counsel

The first USCIS video explains how the employee should properly complete the top part of Form I-9:

The second USCIS video explains how the employer should complete Part 2 of the I-9:

USCIS video number three covers recertification or reverification for re-hires and the newest I-9:

An earlier USCIS video discusses why half a million companies are using E-Verify, the government's FREE online database to verify the information on I-9s. Nationally, E-Verify is voluntary for employers except for certain federal contractors, employers in states with mandatory E-Verify, and employers with I-9 penalty agreements requiring use of E-Verify. The government is touting its half-a-million-employer use of E-Verify. Whether an employer should jump on the bandwagon depends on a number of issues. But, the first thing to do is review the Memorandum of Understanding that would be signed in exchange for the privilege of using E-Verify.

Lastly, employees should check out these resources if they anticipate needing to complete an I-9 form. There is an E-Verify self-check, plus information about how to complete I-9s, what to do if E-Verify spits out a "tentative non-confirmation," and information on employee rights.


February 6, 2014

DACA Update

On February 6, 2014, USCIS posted it's latest statistics about the Deferred Action for Childhood Arrivals (or DACA) program. This program was created by President Obama in his administrative discretion not to deport certain young people who came to the US before they were 16. DACA applicants for the most part would have benefited from the DREAM Act if Congress had ever enacted it into law, which it never did.

As of December 31, 2013, USCIS has received 611,000 applications since DACA started in 2012. Another 20,000 were filed but were rejected for various reasons at the lockbox. Of the 611,000, 427,000 were filed in 2013, and 20,000 have been filed so far in 2014. 521,000 DACA applications have been approved since inception of the program. 16,000 have been denied and 72,000 filed in FY2014 are pending. Mexican nationals are the largest users of the program by far, followed by applicants from various Central American countries, S. Korea and the Philippines. Most applicants reside in California, Texas and Illinois. Washington residents rank 11th (13,000 applicants, of which about 11,000 have been approved.) Overall, it is pretty clear that most of the cases have been approved. The first group approved in 2012 are or will be applying for extensions of stay.

Basic requirements

The basic requirements for DACA are that the applicant:
-Was under the age of 31 as of June 15, 2012;
-Came to the United States before reaching the 16th birthday;
-Continuously resided in the United States since June 15, 2007, up to the present time;
-Was physically present in the United States on June 15, 2012, and at the time of making the DACA application;
-Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
-Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
-Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
- Must be at least 15 years or older to request deferred action, unless currently in removal proceedings or have a final removal or voluntary departure order, in which case, other rules apply.

For more information, see the USCIS web page on DACA.

Travel

Of particular importance to DACA recipients is the ability to travel abroad. USCIS will only grant "advance parole" after DACA is approved and if travel abroad will be for:
- Educational purposes, such as semester abroad programs or academic research;
- Employment purposes, such as overseas assignments, interviews, conferences, training, or meetings with clients; or
- Humanitarian purposes, such as travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative. Travel for vacation is not a valid purpose.

For some DACA recipients who receive advance parole and who have NOT been previously ordered deported, they MAY be able to adjust status to permanent residence following a return trip from abroad using the advance parole, such as if married to a US citizen, rather than consular process and apply for waivers of the unlawful presence bar. But whether this should apply in a given case depends on the specific case facts. Therefore, it is highly recommended that DACA recipients discuss travel, advance parole and adjustment options with immigration counsel before doing any international travel even if advance parole is granted. Don't forget as well, that some immigration issues and criminal histories may be temporarily "forgiven" for DACA purposes, but not necessarily for green card purposes. Likewise, some immigration or criminal histories that would not be a bar to get a green card are not permissible for DACA eligibility. Again, for prospective applicants, anyone with facts going beyond the basic eligibility points above should seek legal advice from a licensed, reputable and experienced immigration lawyer or BIA accredited representative. We offer these services at the Seattle immigration Law Office of Bonnie Stern Wasser. If you cannot afford a lawyer, people interested in applying for DACA should be careful about who they ask for help. There are scams to be aware of as well as individuals not authorized to practice law or before USCIS and other agencies.

February 5, 2014

H-1B FY2015 Filing Season Starts April 1, 2014: Prepare Now to File.

It's that time of year again when human resources professionals should be finalizing offers for "specialty occupation" positions they plan (or hope) to fill with foreign nationals who need H-1B visas. The filing season for fiscal year 2015 will open up again on April 1, 2014 for jobs that can begin starting October 1, 2014, the start of the government's next fiscal year. Applications for H-1B workers who are subject to the annual cap will not be accepted before April 1; therefore, they need to be ready for the mail no later than March 31, 2014.

This ridiculous once-a-year timeline is courtesy of Congress that imposed annual cap limitations years ago except on institutions of higher learning, nonprofit or government organizations engaged in research, and private companies and non-profits with qualifying "affiliations" with the foregoing institutions. Cap-exempt organizations can file all year long. Therefore, it is mostly private sector positions at companies and nonprofits not engaged in research (or lacking affiliation agreements) that are subject to the cap.

The GOP members of the House recently announced that they refuse to move immigration reform legislation along this term. Last June, the Senate passed a massive overhaul bill that would have increased the H-1B numbers. Because no fix is on the horizon before the next filing period, employers are stuck again this year with the same old outdated mad dash to file H-1B applications on April 1 within a very short filing window. An upswing in hiring nationally usually translates to high demand for H-1B workers. This is why a market-based H-1B program is needed instead.

Last year, the filing "season" lasted one week. In addition, there was a lottery due to the flood of applications, making the whole program uncertain for employers who need global talent at the time they file. For FY2014, USCIS received 124,000 petitions for 65,000 cap subject cases plus the additional 20,000 petitions available to those with US masters degrees. Of those, 65,000, 6800 are reserved for Chilean and Singaporan H-1B applicants. Essentially, demand was more than double last year for the available visas.

Logistically, the way the cap cases work, is that employers send in their applications for filing starting April 1 (or until USCIS announces it will stop accepting any more). If there is a lottery, USCIS will conduct it within a few weeks. Employers will know their cases are selected when they receive a fee receipt with case number indicating their filing fee checks were cashed. USCIS will return the cases (and filing fees) if an application is not selected. USCIS will then spend the following months processing the selected cases. Employers can ask for expedited processing for an additional $1225 fee.

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January 15, 2014

"Child" by Assisted Reproductive Technology (ART) Change Announced

On January 14, 2014, the US State Department (DOS) announced a new policy change (that will also be followed by the US Department of Homeland Security (DHS)) regarding immigration status of children born abroad through Assisted Reproductive Technology (ART). This is an important change for family immigration benefits that reflects the government's acknowledgment - finally - that families are created in more high-tech and socially different ways in the 21st century. In addition, ART affects transmission of US citizenship, determined by DOS and described further below. The sections below deal with situations involving whether a child is born in or out of wedlock or is legitimated. These are all in addition to the ways child status through adoption or marriage (step-children) impacts immigration status, which is not discussed here.

Specifically, for immigration purposes, i.e., sponsorship, DOS stated that:

The previous policy required that a mother have a genetic connection to a child in order to qualify as a parent for the purpose of obtaining immigration benefits. Under the new policy, birth mothers (gestational mothers) who are also the legal parent of the child will be treated the same as genetic mothers for the purposes of immigration benefits.

The definition of "child" will now include the child of a genetic or gestational parent who is also a legal parent at the time of the child's birth. Under the new interpretation, INA Section 101(b) (8 U.S.C. Section 1101(b)) treats a child as being born "in wedlock" under INA Section 101(b)(1)(A) when the genetic and/or gestational parents are legally married to each other at the time of the child's birth and both parents are the legal parents of the child at the time and place of birth.

A "child legitimated" and a "legitimating parent or parents" in INA Section 101(b)(1)(C) includes a gestational mother who is also the legal mother of the child. The term "natural mother" in INA Section 101(b)(1)(D) includes a gestational mother who is the legal mother of a child at the time and place of birth, as well as a genetic mother who is a legal mother of the child at the time and place of birth.

The new policy will be retroactive. There will be cases in which children born abroad to a gestational and legal mother were previously denied an immigration benefit under the prior interpretation. In such cases, parent(s) must submit a new application for their child, if they wish to re-apply. The application must include sufficient evidence demonstrating that they meet all relevant statutory and regulatory requirements as well all appropriate fees.

For transmission of US citizenship, things become more complicated since there must be a biological connection to one or both parents claiming to transmit citizenship. Thus, DNA testing plays a much more critical role, but it can only be done after the child is born. DOS recommends exercising caution in the process because it cannot pre-adjudicate citizenship status (either for Consular Reports of Birth Abroad or US passports) prior to the child's birth.

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