Siskind’s Summary of The White House Visa Modernization Report

White House Releases Report Outlining Visa Modernization Initiatives

The White House released a 46 page report outlining what visa modernization initiatives it is pursuing based on the President’s November 2014 announcement of plans for taking executive actions on a variety of immigration subjects. Earlier this year, USCIS issued a Request for Information calling on the public to make suggestions. More than 1600 comments were received. Most recommendations were expected, but a few were new. Some expected recommendations were very vaguely mentioned. For example, we are expecting a lengthening of STEM OPT time, but the report only says that improvements are going to be made to the OPT program without specifying what is going to change. We also saw the I-140 portability change I reported on last month, but the early EAD application part is not specifically referenced (though hinted at).

The following is my summary of the document:

 

I. Executive Summary

President’s November 2014 announcements included a call to modernize the legal immigration systems for high-skilled workers, entrepreneurs, students and families. The announcements were accompanied by a Presidential Memorandum entitled “Modernizing and Streamlining the US Immigrant Visa System for the 21st Century”. It called for

1. reducing government costs, improving services, reducing burdens on employers and combating waste, fraud and abuse in the system;
2. ensuring that all visa numbers allocated by Congress are used, consistent with demand; and
3. modernizing the IT infrastructure underlying the visa system.

 

DOS, DHS and the White House (WH) made internal assessments, engaged with outside stakeholders and reviewed suggestions that were a part of a Request for Information. 1,650 responses were received from the public.

The report’s major recommendations:

Modernizing Our System for Efficiency and Accessibility

The current system is almost entire paper-based and some documents change hands at least six times. Tech needed to transform system.

• create a cross-agency digital services team to work together to implement the “modernized immigrant visa project”
• redesign systems with “an eye towards a human perspective and accessibility for users”
• create a communications task force to draft clear, plain-language instructions
• adopt best practices for software development and modernize tech to improve content management
• create an interagency task force to enhance data collection in order to increase transparency

Streamlining Our Legal Immigration System

While legislation is needed to increase statutory green card caps, the following recommendations can improve existing programs:

• improve the issuance of employment-based immigrant visa numbers
• increase efficiency for international arrivals via better tech and focusing on high-risk travelers
• implement a pilot “Known Employer Program” allowing certain employers meeting certain requirements to pre-establish certain petitioner requirements
• improve the integrity of the EB-5 program and increase the minimum investment [query – this seemingly requires legislation]

Strengthening our Humanitarian System

Existing humanitarian relief avenues don’t reflect current law and need improvement:

• allow family members of Filipino veterans to seek parole
• simplify systems for domestic violence survivors to petition for VAWA visas
• implement statutory provisions for victims of crime and trafficking
• provide guidance and consistency for vulnerable populations seeking immigration relief

 

II. Introduction

A. Background and Methodology

The President directed DOS and DHS to lead an effort across the Federal government to develop recommendations focused on three broad areas:

1. Consult with a variety of private and public actors to streamline and improve the legal immigration system with a focus on reducing government costs, improving service, reducing employer burdens and combatting waste;
2. Consult with immigration law experts to ensure that administrative policies, practices and systems use all of the immigrant visa numbers; and
3. Consult with private and public tech experts regarding modernizing the visa system’s IT infrastructure.

 

1,650 comments in response to Request for Information. Responses provided recommendations to address

• long wait times
• employment restrictions
• the separation of families due to the long application process
• lack of transparency and predictability
• systemic and practical barriers for visa applicants
• challenges for domestic violence and trafficking survivors
• outdated tech and online user accessibility

B. Benefits of Legal Immigration

This section outlines the many positive contributions legal immigrants make to American society.

C. Understanding our Immigration System

This section outlines the various immigration roles of USCIS, ICE and CBP as well the Department of State and the Department of Labor.

D. Intersecting Principles to Promote Integrity and Protect the Nation

This section discusses the role of various agencies in preventing fraud and insuring the integrity of the immigration system.

 

III. Progress on President Obama’s November Executive Actions

This section outlines actions that have already moved forward including

• work authorization for certain H-4 spouses
• the L-1B policy memorandum
• release of a DOL memorandum regarding protection of victims of crime and human trafficking
• release of a notice of proposed rulemaking on 7/15/2015 to expand the provisional waiver program to all statutory eligible classes of relatives for whom an immigrant visa is immediately available (current rules limit to just certain relatives of US citizens); the final regulation will be published in Spring 2016; DHS working to clarify definition of extreme hardship

DHS is proceeding with two other improvements:

• DHS will propose a parole program for entrepreneurs who would provide a “significant public benefit”; example: because they have been awarded substantial US investor financing or hold the promise of innovation and job creation through the development of new tech. DHS will also clarify guidance regarding the standard by which national interest waiver-based green card petitions will be adjudicated for those benefiting the US economy.
• DHS is evaluating the OPT program to determine how to enhance the program in a manner that strengthens the program and improves training for students who will enhance US innovation and competitiveness while protecting US workers.

 

IV. Modernizing Our System for Efficiency and Accessibility

A. Information Technology Processing

The immigration system is almost entirely paper-based and because so many agencies and offices are involved in adjudicating petitions, documents move no fewer than six times over thousands of miles before a case is completed. DOS and USCIS have started reform initiatives. USCIS’ Electronic Immigration System (ELIS) used a traditional waterfall methodology which has been slow and too reliant on a single vendor’s proprietary technologies. It has not worked as anticipated.

USCIS has been rebuilding ELIS using a modern technology stack, industry-leading security and privacy practices and real-time connections into other systems across DHS and other government agencies to screen for fraud and misrepresentation, security and safety risks and criminal activities.

DOS and USCIS are preparing to launch the modernized immigrant visa (MIV project) which aims to improve the visa applicant experience. it will offer a suite of applications to more efficiently process and manage electronic immigrant records. Five consulates are testing in 2015 and more will join in 2016. In conjunction with this project, the US Digital Service (USDS) has been working with stakeholders to assess how people experience the immigration process and has generated the following recommendations.

Recommendation 1: Create a cross-agency digital service team to support the implementation of the MIV project.

Recommendation 2: Simplify the applicant experience through increased information sharing acros agencies and increased accessibility through electronic filing of forms and payments. Web sites for different agencies that play a role in a single visa application are inconsistent and confuse applicants. The following actions will improve the applicant experience in the MIV process:

• offer to collect the USCIS immigrant fee used to pay for the printing of a green card at the same time DOS collects the immigrant visa fee. Those fees should be payable via debit and credit cards in addition to bank draft. Separating the fees for each agency should happen on the back-end.
• digitize the Form I-864 Affidavit of Support so that sponsors can fill it out online and the manual data entry work can be avoided
• Allow electronic filing and processing of Form I-130, the Petition for Alien Relative, through USCIS ELIS.
• Improve visa interview appointment scheduling by increasing collaboration between the NVC and consular posts

Recommendation 3: Redesign systems based on people, not form numbers. DOS and USCIS shall take the following actions:

• create a roadmap and single vision for what the applicant’s immigration process looks like from start to finish as a guide for designing and building new tools
• build intuitive electronic tools that guide and assist applicants through the online immigration application process.
• streamline the amount of data an applicant must re-enter repeatedly.
• provide applicants with a single dashboard that allows them to view their case status in the overall process. Currently, applicants must check separately with DOS and USCIS.

Recommendation 4: Convene a short-term communications task force charged with making process instructions clearer, reader-friendly, holistic and actionable. The task force will

• review all instructions, consult with agency process experts, legal counsel, usability experts and applicants to produce one instructional resource that clearly explains how to complete an application
• translate the immigrant visa portions of travel.state.gov into Spanish and develop video tutorials on filling out common forms. DOS will study adding more languages after that
• coordinate joint outreach activities between DOS and DHS with a focus on targeting US petitioners about early activities that affect later visa processing.

Recommendation 5: Strengthen public communications strategies about the visa process overseas and in the United States. DOS lacks a consistent way to communicate with applicants, lawyers and community groups about their processes. DOS will

• build on examples of successful engagement on consular issues by proactively reaching out to share visa process information with the public via messages and media that resonate with them with the goal of providing information and engaging in a dialog
• increase public outreach and engagement efforts by consular posts including via existing post websites, local organizations and other channels tailored to local conditions in order to engage visa applicants and ensure a diversity of feedback

Recommendation 6: Adopt modern best practices for software development, such as deploying in a flexible hosting environment and using monitoring systems. Currently, government immigration software applications are hosted in government data centers rather than using cloud providers. DHS and and DHS will explore the following:

• deploy government services on flexible infrastructures where capacity can be increased in real-time to meet traffic spikes and begin moving applications to the commercial cloud (insuring protection of personal data)
• create best practices for agencies to monitor how well their services are working

Recommendation 7: Modernize and simplify technology stacks. DOS and USCIS should upgrade and modernize their current technology stack and its components across all MIV pilot applications and the two agencies will

• implement system upgrades to the Consular Consolidated Database (CCD), the DOS software and data storage system for requesting consular services
• launch the new Immigrant Visa Content Service (IVCS), a content management system for immigrant visa case file data that can then be accessed through the entire course of visa processing.

Recommendation 8: Enhance State and DHS interagency collaboration on data collection regarding feedback from the public on public-facing systems.

B. Transparency and Data Publication 

While the various immigration agencies publish statistics, policymakers and the public would benefit from having more robust statistical information about the immigration system. DHS, DOS and DOL must “re-conceptualize” how data are collected, stored and disseminated. The following are recommendations tied to this goal:

Recommendation 1: Create an interagency working group to evaluate and improve data collection and publication. The group will

• conduct a comprehensive assessment of current immigration statistics
• evaluate the capacity of agencies to reform and update the collection and publication of immigration statistics
• consult with other US statistical agencies to advance methods to collect, share and cross-reference information
• develop recommendations to enhance data collection and publication
• execute a one-year plan to implement recommendations

Recommendation 2: Increase DHS capacity and resources dedicated to the collection, analysis, and dissemination of immigration statistics.

Recommendation 3: Clarify statistical policy guidance for USCIS adjudicators collecting data.

Recommendation 4: Set up governance boards to create data collection standards.

Recommendation 5: Document procedures used to collect data and identify areas for improvement.

Recommendation 6: Enhance publication of enforcement data by DOL.

 

V. Streamlining Our Legal Immigration System

 A. Legal Immigration Options

This section provides an overall explanation of the types of legal immigration options available in the immigration system.

B. Employment-Based Immigrant Visa Issuance

The following recommendations will help ensure

• that all immigrant visas authorized by Congress are issued when there is sufficient demand
• better account for visa availability for persons seeking to adjust status to lawful permanent residence while remaining in the US, and
• provide additional job flexibility and portability for nonimmigrant workers affected by immigrant visa backlogs

Recommendation 1: Update the monthly Visa Bulletin. Later in 2015, DOS will revise the monthly Visa Bulletin to better estimate immigrant visa availability in order to provide needed predictability to nonimmigrant workers seeking green cards. This will ensure that the maximum number of green cards are issued each year and will minimize the potential for visa retrogression.

Recommendation 2: Refine monthly allocation of visas. DOS will increase monthly visa allocation totals during the first three quarters of the fiscal year in order to ensure that fewer numbers are left in the final quarter and reduce the likelihood that the mandated maximum number of green cards will not be used.

Recommendation 3: Improve numerically controlled immigrant visa appointments. The NVC will alter how immigrant visa appointments are made in the last month of the fiscal year (September) to ensure there is sufficient time to consider enough applications to max out green card quotas.

Recommendation 4: Clarify and expand protections for employment-based immigrants and nonimmigrants. DHS will finally publish an AC21 regulation that will

• increase the ability of workers waiting for a green card to change jobs or receive promotions by clarifying what is “same or similar” employment
• further increase job flexibility by enabling people with employment-sponsored immigrant visa petitions that have been approved for at least a year to retain eligibility for a green card despite the petitioning employer closing its business or seeking to withdraw the approved petition
• provide increase guidance on job portability provisions for H-1B workers
• extend grace periods for certain nonimmigrant workers whose authorized stay has expired, including because their jobs have been terminated, to better allow them to obtain other employment without losing their nonimmigrant status [note – this is a concept not previously announced by the White House]
• clarify when H-1B nonimmigrants may begin working without requiring licensure
• provide increased guidance on the maximum period of admission for H-1Bs including for those on a green card path and enable H-1Bs to recapture time spent outside the US
• clarify which H-1B nonimmigrants are exempt from the statutory cap to ensure that those nonimmigrants who are contributing to US research and the education of Americans remaining the US; and
• protect H-1Bs who suffered retaliatory actions because they have reported labor violations committed by their employer

 

C. Immigrant Investor Visa

Over the last four years, USCIS has made significant enhancements to the administration of the EB-5 program including creating new specialized intake teams with economic expertise and program requirements and issuing updated policy guidance. But opportunities remain to further improve the integrity and impact of the program including measures to enhance protections against fraud and abuse, ensure the program is maximizing job creation and economic growth and reducing unnecessary burdens and uncertainties on the part of petitioners, Regional Centers and other program participants. The following are recommended changes to the EB-5 system:

Recommendation 1: Update standards for the EB-5 Program. Changes will include requiring conflict-of-interest disclosures by Regional Center principals, enhancing background checks and public disclosure requirements and increasing the minimum qualifying level of investment

Recommendation 2: Clarify options for potential EB-5 investors to obtain visitor visas. DOS will amend the Foreign Affairs Manual to clarify that potential EB-5 investors can obtain visitor visas to examine or monitor potential qualifying investments if they otherwise qualify for the visitor visa.

D. International Arrivals Process for Visitors and Immigrants

Providing foreign visitors, workers and immigrants arriving at our borders with a positive experience is an important goal of the US. In order to further current efforts in this regard, DHS and DOS will implement the following recommendations:

Recommendation 1: Expand the use of Automated Passport Control (APC) kiosks and Mobile Passport Control Applications. These system allow passengers to scan their passports and enter customs declarations at kiosks or on their phones which will reduce lines by as much as 45%. CBP is working to expand APC tech to green card holders, visa waiver travelers and certain temporary visas.

Recommendation 2: Consider allocating greater resources for screening of high risk travelers and streamlining certain nonimmigrant visa application protocols for low-risk travelers (e.g. allowing them to use the existing Interview Waiver Program (IWP) for consular visa applications. The IWP may be expanded to include

• individuals meeting select DHS security requirements and who have previously obtained a nonimmigrant visor have a valid ESTA authorization with fingerprints on file, and are applying for select visa categories including B-1, H-1B, I, and J-1 visas (except summer worker applicants)
• individuals who are returning student visa holders and their dependents (F-1/F-2) continuing in the same program and approved in SEVIS
• individuals who are enrolled in the Global Entry or NEXUS programs and
• individuals who apply for B-1/B-2 visas who already possess valid nonimmigrant visas in another category

Recommendation 3: Expand Global Entry options for travelers. DHS will continue to seek partnerships with other foreign governments to allow more Visa Waiver Program travelers and visa holders to access the program.

Recommendation 4: Expand pre-clearance with pre-boarding inspection. CBP pre-inspects travelers at 15 airports in six countries. DHS will enter into negotiations to expand pre-clearance to new locations.

Recommendation 5: Eliminate the need for air passengers to complete a paper Customs Declaration form. This would mean passengers would be able to leave the airport after collecting their luggage and not have to wait in a second line to exit.

E. “Known Employer” Pilot Program

On January 8, 2015, DHS announced plans to start a “Known Employer” pilot program to make it possible for employers meeting strict criteria of good corporate citizenship and immigration compliance to have a streamlined application process where USCIS would not re-adjudicate corporate bona fides in each new application.

Recommendation 1: Improve visa adjudication times by streamlining the collection of information. The pilot program will enable DOS to access and use the data in order to reduce adjudication times.

Recommendation 2: Create a prototype for testing and employer awareness.

Recommendation 3: Publish a report on the program’s effectiveness and integrity.

Recommendation 4: Prepare an implementation plan and timeline for a permanent Known Employer Program.

F. Exchange Visitor Program

In order to enhance the Exchange Visitor Program, in particular the summer work travel program, DOS will implement the following recommendations:

Recommendation 1: Create additional protections for the Exchange Visitor Program. DOS will publish a regulation to enhance protections for J-1 visitors at their host placements and in their housing, strengthen cultural activity offerings and increase overall support to summer work travel participants at each stage of the program process.

Recommendation 2: Continue to improve the Summer Work Travel Program consistent with the GAO February 2015 recommendations. The 2015 report recommended DOS pursue a variety of changes to improve the summer work travel program.

G. Additional Improvements

Recommendation 1: Modernize and streamline PERM adjudications. DOL will issue a new regulation to better align PERM with the objectives of the immigration system and the needs of workers and employers including updating recruiting method, correcting minor errors and disclosing application outcomes to immigrant workers. DOL will also continue to streamline the processes, including audit review, in order to reduce the pending audit caseload and allow for faster adjudication of audited cases.

Recommendation 2: Enhance opportunities for certain employment-based immigrants and nonimmigrants. DHS intends to

• publish a final rule that provides flexibility in terms of documentation that may be submitted in support of EB-1 outstanding researcher or professor petitions; include H-1B1 and E-3 in the list of class authorized for employment incident to status with a specific employer; and allows H-1B1, E-3 and CW-1 nonimmigrants with up to 240 days of continuing work authorization beyond the expiration date noted on their Form I-94 while a timely extension request is pending
• clarify guidance for certain nonimmigrants with extraordinary abilities and internationally recognized entertainers and athletes, namely O and P petitions filed by agents and sponsors acting on behalf of a beneficiary
• simplify RFE templates

Recommendation 3: Provide greater clarity and certainty to H-1B beneficiaries and their employers. DHS will

• assess whether there is a way for H-1B workers to confirm submission of a petition filed on their behalf as well as request status updates on such filings
• amplify and engage in robust outreach to ensure H-1B employers and beneficiaries understand how to demonstrate an employer-employee relationship where the beneficiary owns or co-owns the petitioning company

Recommendation 4: Enhance information to encourage reasonable deference to prior adjudications of H-1B and L-1 petitions.

Recommendation 5: Strengthen employer support for US-born workers in STEM fields. The National Science Foundation and other agencies will work with USCIS to to strengthen the ability of employers sponsoring high-skilled worker visas to simultaneously support education and training to grow the next generation of American workers in STEM fields.

Recommendation 6: Clarify which nonimmigrant classifications permit for dual intent. Regarding F-1s, DHS will clarify when US employers may directly sponsor students for LPR status. DOS will amend the FAM to state that the likelihood that a student may change or just status in the future is not a basis for denying a visas.

Recommendation 7: Provide greater clarity and certainty to streamline nonimmigrant visa employment petition returns to USCIS. 2% of USCIS approved NIV petitions are refused by consular posts and returned to USCIS. DOS will periodically publish refusal rates for petition-based NIVs and ensure that guidance is publicly available to provide transparency for petitioners.

 

VI. Strengthening Our Humanitarian System

A. Parole for Certain Family Members of Filipino Veterans

Recommendation: Allow certain family members of Filipino veterans to seek parole

B. Self-Petitioners under the Violence Against Women Act of 1994 (VAWA) 

VAWA allows certain spouses and children of US citizens and green card holders or parents of US citizens to seek green card status without the abuser’s knowledge.

Recommendation 1: Allow concurrent filing for work authorization

Recommendation 2: Clarify for consular posts that the public charge ground of visa ineligibility does not apply in VAWA cases.

Recommendation 3: Clarify requirements and processes for Cuban VAWA self-petitioners.

Recommendation 4: Clarify Access to Services Necessary to Protect Life or Safety.

C. Work Authorization for Battered Spouses

Recommendation: Publish final guidance to implement work authorization for certain battered spouses.

D. Victims of Crime

Recommendation 1: Provide clarity for victims of crime seeking to obtain U nonimmigrant status.

Recommendation 2: Clarify the public charge exemption for U nonimmigrant petitions

E. Victims of Human Trafficking

Recommendation: Modify requirements and procedures for individuals seeking T nonimmigrant status.

F. Children Who Age Out

In order to provide consistency and clarity in the adjudication of Child Status Protection Act of 2002, the following actions are recommended:

Recommendation: Clarify when “extraordinary circumstances” might exist allowing an exception to the normal rule at a CSPA beneficiary must seek to acquire a green card within one year of visa availability.

G. Vulnerable Populations at Consular Posts

Recommendation 1: Consistently process immigrant visa cases raising humanitarian concerns across agencies. In other words, when one agency determines a case merits expedited processing, other agencies will act accordingly.

Recommendation 2: Improve and standardize interview practices for applicants with mental and physical disabilities.

 

 

My Scorecard on the White House Visa Modernization Report

I’ve been studying the White House Visa Modernization report and determining whether what was said really lived up to the billing and whether the public feedback was considered or ignored.

In quick follow-up to the November 2014 announcements, the State Department and the Department of Homeland Security issued a Request for Information (RFI) and asked 18 questions regarding how to make improvements to the legal immigration system in the US. They received more than 1600 responses by the late January 2015 deadline.

I examined responses from the American Immigration Lawyers Association, the US Chamber of Commerce, the IMG Taskforce and other organizations as samples to compare to the actual recommendations issued by the White House. I also compared the RFI itself to the report issued yesterday.

Unfortunately, my conclusion is that the report is timid and disappointing. The vast majority of comments were ignored and entire questions from the RFI were left out of the report.

Below are the 18 questions asked in the RFI along with my grade from A to F and my comments on what they got right and wrong.

1. What are the most important policy and operational changes that would streamline and improve the processing of immigrant visas at U.S. Embassies and Consulates, for both family-sponsored and employment-based immigrant visas? [Grade – C-]

Consular processing will likely improve somewhat as a result of the report’s recommendations on improving software and communications. But few recommendations were included that would address serious problems in the system that cannot be addressed with better technology. AILA offered a number of helpful ideas that were mainly ignored. For example, the National Visa Center needs a lot more resources to do its job properly. The I-824 process to notify the State Department to initiate consular processing is woefully slow – 6 to 9 months on average. That process can be re-engineered to dramatically improve it. Persons subjected to lengthy administrative processing delays are largely in the dark about what is happening in their cases and can seemingly do nothing to fix it.

2. What are the most important policy and operational changes that would streamline and improve the processing of nonimmigrant visas at U.S. Embassies and Consulates, including visitor, student, temporary worker and other nonimmigrant visas? [Grade – C-]

There were a lot of fixes that could have been made here, but again it’s mostly tech improvements and improving communications. But there are serious problems with non-immigrant visa processing at US consulates around the world. In fact, more damage is done to the image of the US by people’s experiences at US consulates than almost anything else we can control. Probably the number one complaint people have is being denied visitor or other non-immigrant visas with little explanation and a feeling that the applicant spent a lot of money on the application and wasn’t given a fair chance. The average window interview is usually just three or four minutes long and a denial is only accompanied by a form INA 214(b) letter offering no helpful information on why the application was denied. AILA and others asked for consular officers to provide more specific information in visa denials rather than just a useless template. But this was ignored. Also, AILA asked for a fix to a long-standing problem of L-1 blanket petitions being approved for three years, but L-1 visa approvals being for five years and asking that the two be synchronized. This was ignored.

Finally, a huge, huge opportunity was lost when the suggestion to bring back domestic visa revalidation was ignored. This is the process of allowing people to seek extensions of their visa stamps in the US as opposed to having to fly to a consulate and have it done. This was available for many years until it was stopped in the wake of 9/11. In theory, this was part of a process of reviewing the various parts of the immigration system to ensure security. But it was never restored even though there’s no evidence it was a security risk.

3. What are the most important policy and operational changes that would streamline and improve U.S. Citizenship and Immigration Services (USCIS) processing of the following types of immigrant and nonimmigrant visa petitions? [Grade – C+]  

Family-sponsored immigrant visa petitions – almost no changes were mentioned for family sponsored immigrant visas.

Employment-based immigrant visa petitions – some helpful changes were provided in the White House memo. They included the following:

• AC21 changes to clarify when porting from employer to employer is permitted and clarifying what is the “same or similar” occupation
• A critical change I reported on last month that would let I-140s survive even if an employer attempts to revoke or an employer goes out of business.
• PERM modifications to make the program more forgiving, faster and user-friendly

Unfortunately, a lot of good suggestions were left out. For example, AILA offered the following suggestions

• Automatically extend work authorization upon filing a renewal I-765 EAD application
• Clarify the role of USCIS v. DOL in the employment-based immigrant visa process
• Clarify that a priority date is retained where the previous employer withdraws an I-140

And a big omission is allowing individuals with approved I-140s pending a year or more to file for Employment Authorization Documents. The Administration has already had its memo on this go public and has basically acknowledged that this is in the works. Why leave it out?

Nonimmigrant petitions

Again, some good fixes, but most of the best suggestions were ignored. One suggestion that showed up in many places in the comments was mandating USCIS and other agencies offer deference to prior decisions on cases with nearly identical facts (such as extension petitions). The WH memo has a relatively tepid acknowledgement of this need and has a recommendation stating the following: “Enhance information to encourage reasonable deference to prior adjudications of H-1B and L-1 petitions. DHS will modify form instructions for H-1B and L-1 extensions in order to ensure that petitioners provide documentation of previous adjudications and adjudicators have as much documentation as possible when making determinations.” This is hardly binding and seems to change nothing. A big, big disappointment.

The memo speaks to providing new guidance on agents petitioning for O and P entertainers and athletes. That’s good, but there are so many problems in the adjudication of these cases that it’s puzzling why one relatively small issue is dealt with and no others (such as requiring the work being performed to require someone with extraordinary ability, something that is not in the statute but is in the regulations).

Other changes recommended that were ignored –

• allowing continuing employment authorization for the whole duration of a pending extension application and not just 240 days
• allowing traveling without advance parole for Os, Es, Ps and TNs, as is currently the case for H-1Bs
• allowing spouses of Ls, Es and K-1s to work incident to status as opposed to needing a work card

One good piece of news is the openness to expanding “dual intent” to more visa categories such as F-1s.

Humanitarian petitions and applications (such as U nonimmigrant status petitions, T nonimmigrant status applications, and VAWA self-petitions)

Generally, this was one of the better areas in the report and a lot of helpful changes are included. Clarifying that TPS recipients can apply to adjust status would have been helpful.

H-1B temporary worker visa petitions; specifically, ways to reduce burdens on employers and workers engaging in the H-1B petition process, consistent with protections for U.S. and temporary foreign workers. 

The memo had some good news on H-1Bs. USCIS is to clarify when owners of businesses can petition for H-1Bs for themselves. Clarification on when a license must be provided to get an H-1B is coming. An expanded grace period for workers who are terminated from an employer to have to refile a new petition is also coming. Also, the “known employer” initiative mentioned in the report will likely improve H-1B and L-1 processing. But a couple of big problems in H-1B world were ignored including

• the definition of “affiliated” for claiming H-1B cap exemption. USCIS takes an unnecessarily restrictive view that is really unnecessary.
• the terrible Simeo case which USCIS has adopted as precedent requiring H-1B amendments each time an employee changes locations. This is a huge waste of money and time for employers. It could have been dealt with here.

Finally, the failure to call for expanding premium processing to all non-immigrant and employment-based immigrant categories is disappointing. Premium processing is mentioned nowhere in the report and it is one of USCIS’ success stories.

4. What are the most important policy and operational changes that would streamline and improve the process of changing from one nonimmigrant status to another nonimmigrant status? [Grade: B]

The White House memo did include language about providing more guidance on when H-1B portability is available. And there is a recommendation on allowing automatic work authorization extensions for H-1B1s and E-3s with extension applications pending. It would have been nice to have gotten clarification on the old Hernandez-Schorr correspondence that when one is moving from an H-1B cap exempt employer to a cap subject employer, that portability allows for work authorization all the way through the October 1st start date.

5. What are the most important policy and operational changes that would streamline and improve the process of applying for adjustment of status to that of a lawful permanent resident while in the United States? [Grade – F]

Why ask the question and then include nothing – zero, nada – in the memo on this subject. There were no recommendations about making the adjustment process better. I guess the Administration thinks adjustments are perfect as is and need no improvements.

6. What are the most important policy and operational changes that would streamline and improve the inspection of arriving immigrants and nonimmigrants at U.S. ports of entry? [Grade – B+]

Some good recommendations are in the memo including expanding the availability of Global Entry to more non-immigrants and expanding pre-boarding, pre-clearance inspections at overseas airports. There were some good suggestions ignored including a good one from AILA on xxpanding automatic visa revalidation to those traveling for less than 30 days to any destination and not just Canada, Mexico or adjacent islands.

7. What are the most important policy and operational changes that would attract the world’s most talented researchers to U.S. universities, national laboratories, and other research institutions? [Grade: C]

The few proposals covering this question were pretty vague. For example, a recommendation is included to “Publish a final rule that provides flexibility in terms of documentation that may be submitted to support an EB-1 outstanding professors or researchers petition”. That tells us almost nothing. The big, big problem for a lot researchers these days is the terrible Kazarian case which gives USCIS examiners permission to ignore that statute which says if you can show three categories of evidence to demonstrate extraordinary ability, you’ve met the test. Kazarian basically gives examiners free reign to say that whatever is presented to show extraordinary ability is not enough. This has led to serious abuse on the part of examiners and needs to end. Another suggestion I liked from AILA was to add researchers at national labs to the list of positions eligible for special handling labor certification cases. And the definition of “permanent employment” for post docs should be liberalized to reflect the reality that no positions are permanent when government funds support the work.

8. What are the most important policy and operational changes that would attract the world’s most talented entrepreneurs who want to start and grow their business in the United States? [Grade – B]

We think the White House is close to releasing the parole initiative for entrepreneurs even though little is mentioned in the memo. That’s a common theme. Things we are pretty sure are coming aren’t mentioned which makes people worry about whether they’re really happening or not. At the tail end of the memo, parole is mentioned. Also, guidance on national interest cases for entrepreneurs was mentioned in the November remarks, but is not mentioned in the new memo. There are other changes that could help entrepreneurs that were suggested and ignored which is why the grade is not higher. Extending the initial approval period for startups from one to two years is a good idea. Rescinding the Neufeld memo and simply making the whole issue of owner-entrepreneurs being eligible for the H-1B should have been included as well.

9. What are the policy or operational changes that could assist in creating additional immigration opportunities for high-demand professions, such as physicians? [Grade – F]

If I could give an F minus I would do so. In fact, yes, this is an F-. The White House just won a huge victory on the Affordable Care Act. We’re already experiencing the worst physician shortage in the nation’s history and it is projected to get a lot worse. Congress is not spending the money to expand the American physician pool (which would take many years to significantly expand when they finally do get around to it). More than 25% of the doctors training in our teaching hospitals are educated outside the US. And yet we have policies that are forcing many of them to leave. Many excellent proposals were presented to the White House – some in person. I should know since I was on a team which came up with many of the ideas. The ideas were endorsed by both the IMG Taskforce and AILA. And every one of them was ignored. It is not an exaggeration to say that millions of Americans would have benefited from the ideas presented and it would cost nothing for taxpayers. A real shame. And a shame that NO recommendations were offered that addressed question #9. An epic fail.

10. Focusing on the EB-5 immigrant investor visa, what policy or operational changes would (a) reduce existing burdens and uncertainties on the part of petitioners, Regional Centers, and other participants in the program; (b) ensure that this program is achieving the greatest impact in terms of U.S. job creation, economic growth, and investment in national priority projects that the capital markets would not otherwise competitively finance; and (c) enhance protections against fraud, abuse, and criminal misuse of the program by petitioners or Regional Centers? [Grade – C-]

A mixed bag here. The EB-5 program has its problems and needs better oversight. But it’s also a good way to get cash to worthy investments when the banking system isn’t enough and the job creation requirement is great for Americans. Not a lot of detail is provided in the memo on forthcoming changes, but making the process of applying for regional center designation more straightforward and allowing B visas for people coming to explore EB-5 investment opportunities are both good ideas. Raising the EB-5 lower investment threshold of $500,000 is actually okay under the statute (I was initially skeptical, but now believe it can be done), but I would rather see incremental increases that wouldn’t have a major disrupting effect on the regional centers.

The big thing that would help the EB-5 program is speeding up the process. It takes about two years for an investor to get the green card after the money is invested. Premium processing is sorely needed. Also, when an investment is unsuccessful, investors should have the opportunity to move money in to a new investment that creates jobs rather than having to start from scratch.

11. How can labor market related requirements for temporary workers be best tailored to meaningfully protect both U.S. and temporary foreign workers while achieving operational efficiency for both employers and relevant Federal agencies? [Grade – B]

This one was ignored in the memo. I’m giving it a B anyway because I could see this being one where action on the part of the Department of Labor would have been more of a problem than a solution.

12. How should relevant occupational categories, descriptors, and/or data, such as the Department of Labor’s O*NET system (http://www.onetonline.org) be refined and updated to better align the prevailing wage determination process for visas with the evolving job market? [Grade – B]

This is another question that was ignored in the memo. Again, I give it a B because even though there are improvements that can be made in the prevailing wage documentation process, I’m nervous that changes could make the situation even worse.

13. Focusing on the diversity visa program, what are the most important policy and operational changes that would streamline and improve the diversity visa process, including enhancing protections against fraud? [Grade – B]

Again, this is a question that was not addressed in the White House memo. But maybe it’s because no one commented. I couldn’t find any organizations that included the lottery in their comments. There are, of course, ways the lottery process could be designed to work better. For example, applicants whose processes are not finished on September 30th end up with no green card in the end even if the delays were not their fault. Processes should be altered to ensure that cases are processed with plenty of time to spare.

14. What other policy and operational changes would most effectively combat waste, fraud, and abuse in the legal immigration system? [Grade – B]

Fraud detection is mentioned several times in the report’s discussion of priorities in the immigration system. But there’s not a lot about fraud in the actual recommendations. No one supports fraud, but the regulating immigration agencies have a checkered history when it comes to combatting fraud. Fraud prevention measures often seem completely disconnected from preventing actual fraud. For example, a leaked 2009 USCIS H-1B fraud detection checklist for examiners listed being a small business as a fraud indicator. And the Department of Labor’s 2007 anti-fraud rule barred employees from paying the attorney fees in PERM cases as an anti-fraud measure without actually explaining why this would be fraudulent behavior. Anti-fraud measures should be carefully tailored to actually prevent fraud without having unintended side effects, something that has been lacking to date.

15. What are the most important policy and operational changes, if any, available within the existing statutory framework to ensure that administrative policies, practices, and systems fully and fairly allocate all of the immigrant visa numbers that Congress provides for and intends to be issued each year going forward? [Grade – D]

There were some helpful recommendations on reforming the Visa Bulletin to better ensure that all Congressionally-allocated green card numbers are used each year. But so much more could have been done to provide relief to people waiting years and years in visa lines. The big proposal that was being promoted by many in the skilled immigrant advocacy community was one that would end the counting of derivatives (spouses and children) against the green card quotas. There is a very good legal argument supporting this proposal that was made by the American Immigration Lawyers Association. I understand that the State Department objected to this view. Perhaps the White House is gun shy about having to defend another measure in court. But if you want to be bold, you have to be prepared to fight. And this is one the White House could have won. It would have made a big difference. Two thirds of employment-based greed card numbers are used by family members. The White House could have pushed the State Department on this and instead let the State Department do the pushing. This measure would have ended the backlogs. A real shame.

16. What are the most important policy and operational changes, if any, available within the existing statutory framework to ensure that administrative policies, practices, and systems fully and fairly allocate all of the immigrant visa numbers that Congress provided for and intended to be issued, but were not issued in past years? [Grade – F]

The White House asked this question and then completely ignored it in the memo. And this one would have made a big difference. 220,000 family and employment-based green cards went unused since the green card quotas were set in 2007. As AILA noted, “Although recapture of unused numbers has previously been accomplished through congressional action, the INA does not specifically prohibit the State Department from exercising its authority to recapture unused visas on its own.” But, like the derivatives proposal noted above, the State Department rejected this proposal as well and the White House was unwilling to take it on. Fail.

17. From the perspective of petitioners and applicants, which elements of the current legal immigration system (both immigrant and nonimmigrant systems) are most in need of modernized information technology (IT) solutions, and what changes would result in the most significant improvements to the user experience? [Grade – A-]

One aspect of visa modernization that the report really seems to take seriously is IT modernization and that’s probably because the White House turned to the US Digital Services. There are a number of good ideas listed in the report. The reason I didn’t give it an A is because the report fails to recognize the major problem of the USCIS’ ELIS program – that it is extremely user-unfriendly and USCIS chose to develop the software with no alpha or beta testing with members of the public or with immigration lawyers. Immigration lawyers overwhelmingly eschewed the software because of how difficult it was to use. Unless USCIS changes the way it engages the public in its online case management software, it is not going to succeed.

18. Which existing government-collected data and metrics would be most valuable to make available to the public, consistent with privacy protections and national security, in order to improve oversight and understanding of the legal immigration system? [Grade – A-]

The RFI brought up an important concern – the lack of reliable data on the US immigration system – and the memorandum delivered several useful recommendations to address the concern.

 

 

Back | Index | Next

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.