US Immigration Policy

Latest on Trump’s Immigration Reform

On Wednesday, August 2, 2017, President Trump endorsed a new bill in the Senate aimed at slashing legal immigration levels, the Reforming American Immigration for a Strong Economy (RAISE) Act. This bill is a modified version of a bill senators Tom Cotton (Ark.) and David Perdue (Ga.) first introduced in April to cut immigration by half from the current level of more than 1 million green cards per year. To achieve this reduction and create what they call a “merit-based system,” Cotton and Perdue are taking aim at green cards for extended family members of U.S. citizens and legal permanent residents, limiting such avenues for grown children and siblings. Minor children and spouses would still be eligible to apply for green cards.

The highlights of the Senators’ bill propose to end the visa diversity lottery that awards 50,000 green cards a year, to areas in the world that traditionally do not have as many immigrants to the United States. The bill also caps refugee levels at 50,000 per year. Under the bill, the proposed immigration system would award points to green card applicants based on such factors as English ability, education levels and job skills. The senators said the proposal is modeled after immigration programs in Canada and Australia.

However, the bill’s prospects are dim in the Senate where Republicans hold a narrow majority. The legislation is expected to face fierce resistance from congressional Democrats, immigrant rights groups and business leaders, as well as, some moderate Republicans in states with large immigrant populations. Alex Nowrasteh, an immigration policy analyst at the CATO Institute, wrote in a blog that the bill “would do nothing to boost skilled immigration and it will only increase the proportion of employment-based green cards by cutting other green cards. Saying otherwise is grossly deceptive marketing.”

The impact to H-1b visas of “Buy American Hire American”

The USCIS is hosting a public feedback call today to explore how the President’s Executive Order of “Buy American Hire American” will impact the adjudication of visas without the enactment of new legislation. (there is something inherently un-American about that preceding statement but, alas, it is our current reality) Registration is free. We will be providing a summary after.

The Future? of the EB-5 Program

Numerous EB-5 legislation has been introduced with the intention of curbing some of the EB-5 program’s issues and problems. S.1501, the American Job Creation and Investment Promotion Reform Act of 2015, introduced by Sen. Grassley and Sen. Leahy, included a laundry list of EB-5 “integrity” measures. Sen. Charles Grassley and Sen. Dianne Feinstein, have proposed legislation to eliminate the EB-5 program.

In order to attempt to under the EB-5 landscape as it stands in the current political climate, we must understand the players:
Stephen Miller, Senior Advisor to the President for Policy, is a Former Senator Jeff Sessions alum who is well known for his opposition to legal immigration.

Gene Hamilton, Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor, is also a Sessions alum.

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS), most recently assisted Sen. Grassley to write the H-1B and L-1 Visa Reform Act of 2015, a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits as well as S.1501.

Kathy Nueble Kovarik, Chief of the USCIS Office of Policy and Strategy, is also a Grassley alum.

Julie Kirchner is the USCIS Ombudsman. Ms. Kirchner served as Executive Director of FAIR, an organization actively opposed to the EB-5 program.

The USCIS Ombudsman is responsible for assisting “individuals and employers in resolving problems with” USCIS and due to limits recently placed by way of EB-5 protocols, is the only way for EB-5 stakeholders to escalate issues for EB-5 cases.
Ms. Kirchner, in her Ombudsman’s 2017 Report to Congress, acknowledged that lack of anti-fraud and national security protections, and failure to agree on a permanent or multi-year reauthorization of the Regional Center program, have resulted in adverse consequences. In addition, legislative efforts have stalled over the methodology for determining TEAs, the two-tiered investment framework and effective dates for new provisions. We are also seeing increased USCIS adjudications times and longer waits for Chinese nationals due to visa backlogs.

Most recently, on November 30, 2016, the Department of Homeland Security (DHS) announced the expansion of the USCIS Policy Manual which introduced a new section, Volume 6: Part G, Investors. Part G consolidates and replaces policy guidance found in the Adjudicator’s Field Manual (AFM) Chapters 22.4, Employment Creation Entrepreneur Cases, and 25.2, Entrepreneurs (Form I-829), as well as related AFM appendices and policy memoranda.

While comprehensive guidance is good, the new section of the USCIS Policy Manual is often unclear; provides little in the way of examples and definitions; ignores common and acceptable practices, definitions, and methodologies; and misstates or misinterprets the regulations.

Some of chapters with problems of note for the direct investor include the following:

Chapter 2.A.5 – Targeted Employment Area
• Confirms that a TEA will cease to qualify as a TEA over time if unemployment decreases or population increases. This text is problematic because of the uncertainty it introduces into the planning of EB-5 projects as the USCIS will continue to evaluate and re-evaluate TEA designation.
• Does not mention current USCIS practice granting state TEA designations a validity period of 12 months.
• Not clear as to when an area must qualify as a TEA.
Chapter 2.D.3 – Full-Time Positions for Qualifying Employees
• Refers to the job creation requirement to be “full-time and permanent” when both the INA and the CFR refer to the term “full-time.”
Chapter 4.C – Form I-526/Material Change
• Provides that a “change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision” without providing examples to clarify what would be considered a “material change.”
Chapter 5.C – Removal of Conditions/Material Change/At Risk
• Misstates the plain language of the regulation by requiring evidence that the “at risk investment was sustained throughout the period of the petitioner’s conditional permanent residence in the United States.” The regulations only require investment be sustained “over the two years of conditional residence.”
• Excludes language confirming that an investor maintains his or her conditional permanent residence status even after the denial of the I-829 until a final administrative appeal is complete.

It is unknown if Ms. Kirchner and Mr. Cissna will be able to together resolve the issues and problem plaguing the EB-5 program. For the time being, we must utilize any and all means available to seek results for worthy cases. We should and must continue to submit well-document cases, participate in stakeholder meetings, advocate strenuously, and litigate if appropriate.

Should you have any questions about the future of the EB-5 program, please contact your HLG attorney.

Immigration Reform ? Possible in 2017 ?

It is being widely reported that the Trump Administration may be interested in trying to pass Comprehensive Immigration Reform (CIR) this year. Several of President Trump’s key advisers are unabashedly anti legal immigration but, to get CIR passed, it is likely that the legislation will need to contain some positive improvements in the legal immigration programs in order to get the needed votes to succeed. As legislation moves forward, we will keep you updated.

H-1b Reform What’s next ? Anything ?

As the H-1b industry has absorbed the impact of the Executive Orders issued over the past month, questions arise as to what is next ? As most experts agree, EO’s have limited impact on the H-1b outside of a chilling effect on employers and workers alike, and though this should not be diminished as insignificant, big changes that may last for decades can only come through legislative change. A nice summary of where we stand at present and what might be coming was published in Computerworld last week. Check it out here.

Calculating Your EB Experience Time

On April 17, 2017 an immigration policy memorandum was issued by the Service adopting “Matter of O-A- Inc.,” a copy of the memo can be found here, as a guidepost for USCIS decisions going forward. This case was focused on whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree.

In this case, the beneficiary’s provisional certificate was issued May 17, 2006, but she did not receive her formal diploma until March 30, 2007, according to the decision. The priority date was Oct. 23, 2014. The director concluded that the beneficiary fell short of the five-year requirement because she accrued four years and eight months of qualifying experience between the diploma date and the priority date, but the agency said that, based on the evidence in the record, the issuance of the provisional certificate conferred the foreign equivalent of a U.S. bachelor’s degree. And the agency found that she had obtained at least five years of qualifying post-baccalaureate experience.

It was determined that the provisional certificate, together with the beneficiary’s statement of marks, showed that she had completed all the substantive requirements for her degree and that the university approved her degree. As such, the agency determined that the petitioner had shown that the beneficiary met the minimum education and experience requirements of the labor certification and EB-2 classification and sustained the appeal.

Going forward, the Service has been directed to conduct case-specific analysis to determine whether a beneficiary who received a provisional certificate had completed all requirements to earn the degree and that the school had approved the degree at the time the certificate was issued. This is good news for those beneficiary who get their provisional certificates much earlier than their diplomas.

Attacks on Trump’s EO

The attacks on Trump’s new EO are growing in number as people review what the EO is trying to achieve. An article in The Federalist is worth reading. Another article at SHRM.org discusses the limitations that the President has in making meaningful changes to the H-1b program without legislative action.

Buy American and Hire American

Yesterday, President Trump issued an Executive Order impacting business immigration specifically, the H-1b visa. The order makes NO immediate changes to the H-1b program but, changes they are a coming. The EO essentially makes two (2) directives. First, it orders all agencies that touch the H-1b program to review all of its policies and regulations and write new policies and regulations to further protect US workers and prevent fraud and abuse in the H-1b program. Long-term, this may result in new proposed regulations which will be the subject of notice and comment. In the next few months, this may mean more policy memos, such as the memo released in late March which changed 20 years of policy and declared that many computer programmer positions would no longer be considered H-1b level occupations. As we saw with the introduction of the Neufeld policy memo in 2010, policy memos can have a major impact on a visa category. Immediately, I think we will see an increase in H-1b site visits; DOL LCA audits; 221(g) and administrative processing by US Consulates at visa stamping; RFE’s; use of the NOID in place of the RFE; NOIR issuances; and, denials. The President is proclaiming that H-1b visas harm US workers and there is rampant fraud and abuse and by his comments and this EO, he is directing his administration to do everything in its power to right this wrong. If we thought the “culture of NO” which was pervasive during the last Administration was strong, we now expect to see the “culture of HELL NO”
Secondly, the EO requests that the agencies involved devise a new scheme to replace the H-1b lottery and award the limited pool of H-1b visas to the “most-skilled or highest paid”. The assumption being made in this EO is that the majority of H-1b visas are awarded to low paid workers. New grads from US schools make up at least 20,000 of the H-1b lottery pool and by many estimates, at least a 3rd of the lottery winners and new grads are appropriately paid at the low end of the wage scale. There are a number of problems inherent in any scheme that awards H-1b visas only to the highest paid eg. rural areas will be at a major disadvantage over large cities; some occupations such as healthcare and research will not be able to compete with even the low end salaries paid to IT and engineers; and, large companies will have an advantage over start-ups.

Contrary to the “Buy American” provisions in this EO, there were no timetables set for the immigration related provisions.

The reaction to the President’s EO came quickly with most declaring this is nothing more than chest thumping and a horrible solution in search of a problem. One prominent immigration attorney quoted MacBeth (surely you know the line) and I must admit I responded to an email yesterday about this subject by sending back a pic of a person blowing hot air however, as I outlined above, this will have ramifications. There is no question that we need immigration reform but, it needs to be legislative in origin and needs to be based upon facts and not mere anecdotes tainted by either fear or hatred of immigrants.

And the attacks keep coming

On Monday, the USCIS announced new enforcement measures aimed at “cracking down on abuse in the H-1b program” In this announcement, they specifically targeted the staffing and consulting industry declaring that there is more likely to be fraud and abuse in situations where there is a 3rd party placement. They also expect to target small and new employers as they will often not show up in the VIBE database. Lastly, they also plan on targeting dependent employers. On the heels of the declaration that computer programmers may not qualify for the H-1b visa, there should be no doubt that the high tech industry is clearly in the cross-hairs of the Trump administration. If you happen to be an IT company that places people at 3rd party sites and you haven’t done an internal audit of your H-1b placements, Public Access Files, or procedures in a while, now is the time to do so. Even more troubling than the targeting of a specific industry is that the examiners will enter any site investigation with a pre-conceived notion that there is fraud and abuse. It is always tough to get a fair hearing when the judge believes you are guilty before any facts have been brought to light. Welcome to 2017 !

TechServe Alliance Defends the H-1b visa

In the face of recent attacks, which have portrayed the H-1b visa as a blight on the highly skilled but, unable to find employment U.S. worker; Mark Roberts, CEO of TechServe Alliance pens a well thought out article which describes the need for access to talented workers, defends the proper use of the H-1b visa, and, implores those legitimate users of the H-1b visa to not let your voice go unheard. There is no question that there is some abuse of the H-1b visa program but, Congressional studies commissioned by none other than the H-1b hater in chief, Senator Grassley have proven that said abuse is negligible. The IT and engineering industry will be proponents of well thought out H-1b reforms that provide for protection for the US worker and wages, while at the same time providing timely access to talent that is consistent with the fast paced demands of U.S. employers competing in a global marketplace. For Congressional reforms to be meaningful, they will need to cut through the rhetoric of fear and hate and be led by those not so easily influenced by the 1 in 1000 but, by the 999.