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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.”