US Immigration Policy


The Border Security Emergency Supplemental Appropriations Act of 2010 which the Senate passed last week was also passed in the House yesterday. The bill provides increased border security along the southern border with funding anticipated from some H-1b and L-1 petitions (see previous post on HLG blog for further details). Now the bill has to go back to the Senate because the bill passed by the Senate last week needed to originate in the House (all revenue generating measures must originate in the House of Representatives). The Senate is currently on recess, but expected to quickly pass the bill when they return from the Labor Day recess. It will then go to the President for signature. Since the bill contains a significant increase in fees for H-1b and L-1 petitions, employers with more than 50 employees and at least 50% on H-1b or L-1 visas should do some quick planning. To avoid the fee increase, such employers should file now on any cases they are considering filing.
US Immigration Policy


Just before leaving for the August recess, the Senate passed an immigration bill. The bill, introduced by Senators Chuck Schumer (D-N.Y.) and Clair McCaskill (D-Mo.) as a border security bill, adds $600 million to border security and funds 1,500 new enforcement agents.

However, the funding for the border enforcement will come from companies who sponsor H-1b and L-1 individuals for employment. Specifically, the bill provides for a filing fee and fraud fee increase of $2000 for H-1b petitions filed by companies with 50 or more employees in the U.S. if more than 50% of the workforce is on H-1b or L-1 nonimmigrant status. Likewise, the bill provides for a filing fee and fraud fee increase of $2250 for L-1 petitions filed by companies with 50 or more employees in the U.S. if 50% of the workforce is on L-1 status. The fee increase would become effective on the date the bill is signed into law and would continue through September 30, 2014.

The bill is likely a result of several things. First, members of Congress have favored tougher enforcement of H-1b and L-1 petitions. Second, many members of Congress have refused to vote for comprehensive immigration reform until the U.S. borders are strengthened. Third, the recent bill in Arizona has led the federal government to show action on border security while challenging the Arizona law in court.

Currently the bill has only passed the Senate. It must be approved by the House of Representatives before it can be signed into law by the President. Therefore, the filing fee and fraud fee increase is not in effect……..yet.

Government Agency Actions - USCIS, ICE, etc. US Immigration Policy


The USCIS has issued a response to the leaked internal memo regarding “Alternatives to CIR”. The USCIS said, “Internal draft memos do not and should not be equated with official action or policy of the Department. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation’s immigration challenges.Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected.”

US Immigration Policy


The USCIS has been discussing some options to provide positive immigration relief if legislation on comprehensive immigration reform does not get passed. In an internal memo to the Director of USCIS, the offices of Chief Counsel and Policy and Strategy lay out some suggestions for USCIS to take administratively within the current structure of the law without having to wait for Congress to pass legislation. Some of the key suggestions include the following:

1. Provide work authorization for H-4 dependent spouses if the H-1 applicant has an application for permanent residence and has extended beyond the 6 year limit. Currently H-4 dependents have to wait for the filing of an I-485 application to get work authorization, however, that can’t be done unless the priority date is current.

2. Expand the ‘dual intent” doctrine to non-immigrants such as TN’s and F-1. This could be especially helpful for applicants in TN status (such as registered nurses) who have delayed filing an I-140 petition because of concerns about traveling since TN is not currently a “dual intent” status.

3. Create a grace period ranging from 45 to 90 days for some non-immigrant categories. This would be especially helpful for H-1b applicants to do an H-1b transfer if they lose a job and soon find a new job, whereas current law holds the person to be “out of status” and subjects the H-1b applicant to returning to his/her home country to get a new visa stamped.

4. Eliminate unlawful presence (3 year and 10 year bar) for adjustment of status applicants. This would allow applicants who are subject to the bar on re-entry to freely travel and re-enter the U.S. to resume their application.

5. Expand premium processing to all employment-based cases. USCIS noted that they do not have a current backlog in cases so they are equipped to expand their premium processing unit.

6. Utilize defferred inspection to applicants whose removal is not in the public interest. This allows a “stay”in the U.S. to buy time for the applicant to have some form of legislative relief in the future.

7. Expand the EB-5 investor visa program. This program provides permanent residence to foreign nationals who invest in a U.S. business that creates at least 10 jobs, however, the program has been underutilized. The USCIS views this program as an important tool to revitalize the U.S. economy.

8. Extend work authorization on EAD when an extension is filed. This would allow automatic 240-day work authorization for an applicant who files an EAD extension before the current one expires. Currently the renewed EAD must be approved by the time the current one expires for the foreign national to continue to lawfully work.

SCIS believes these options are immediately at their disposal or can be quickly implemented through notice in the Federal Register based upon current authority. There is no word yet on if or when USCIS will implement these suggestions.

US Immigration Policy


The conceptual proposal for immigration reform by Reid, Schumer and Menendez lays out the basic structure of what they want the CIR bill to contain. Here’s the basic framework of the plan:

1. Border security – increased efforts to secure the border BEFORE action is taken to adjust the status of anyone already in the U.S. illegally. The security efforts include increased resources (people, money and equipment) to detect and prevent illegal entry.
2. Detection of unauthorized presence – equip all ports of entry with “US-VISIT” (United States Visitor and Immigrant Status Indicator Technology) to track when any person overstays their status in the U.S. Plus, criminals in federal, state and local prisons may be checked for lawful immigration status.
3. Increased penalties for violators – increase in penalties for foriegn nationals who violate immigration laws and 300% increase for employers who employ unauthorized individuals.
4. Biometric employment verification – the Social Security Administration to implement biometric social security cards within 18 months of enactment of the law. The cards will only serve as evidence of lawful work authorization.
5. Employment verification – replacing E-verify with BELIEVE (Biometric Enrollment, Locally-stored Information and Electronic Verification of Employment) which would be phased in within approximately 6 years after the law is enacted. Within 5 years the biometric social security card would be the only acceptable document for employment verification under the BELIEVE system.
6. High-skilled immigrants – a green card immediately available to foreign students with advanced degree from a U.S. institution in the STEM (Science, Technology, Engineering, Math) fields of study if they have a job offer from a U.S. employer in the field of study.
7. H-1b – increased provisions of H-1b including requiring internet postings to try to hire U.S. workers and limiting the number of H-1b’s for an employer of 50 or more workers.
8. L-1 – limiting L-1b specialized knowledge to one year if the worker is placed at a third-party site. Also, adding wage rates and working conditions to the L-1 category.
9. H-2C – creating an H-2C category for non-season, non-agricultural workers (example: nurses) that would be valid for three years and renewable for a total of six years. It would also be dual intent and allow for portability to another employer after one year of employment. The annual cap would fluctuate based upon unemployment and economic factor, however, an employer could obtain a worker despite the cap if the employer engages in additional recruitment and pays a premium fee.
10. Visa backlog recapture of unused visa numbers, increasing the per country limit from 7% to 10%, eliminating the family backlog within 8 years and classifying spouses and children of lawful permanent residents as “immediate relatives”. Also, the creation of a Commission on Employment-based immigration that would allow for fluctuations in visa numbers.

House Republican Leader John Boehner says there’s “not a chance” immigration reform will pass this year. He said, “We ought to have an immigration reform move through congress but you can’t do immigration reform in the middle of a boiling, political pot here in Washington, D.C.” He also said efforts by Senator Charles Schumer and others to move on an immigration bill is “nothing more than a cynical ploy to try to engage some segment of voters to show up in this November’s elections.”

US Immigration Policy


Immigration reform is becoming a higher priority for Congress – at least for the Democrats – because of the new Arizona law that gives police in Arizona the right to question any person who the police suspect may be in the U.S. illegally. The national attention from the Arizona law and the concern about the Democrats’ prospects in the November election is causing the Obama administration and congressional Democrats to make immigration reform a priority this year – perhaps even introducing a bill before Memorial Day weekend.
The prospects of any federal immigration reform passing before the election are slim. Yet that may not be the sole purpose of immigration legislation. The Obama administration and Democrats are hopeful that the move on immigration will please their political base and help salvage some of their votes in the November election. But pushing it this year may also mean the death of CIR for several years to come. If immigration reform is voted on this year and then fails, it will make it more difficult to revisit the same issue next year, but may clear the way for other employment-based legislation to be offered by piecemeal next year.
Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN

GAO Conducting H-1B Study

The U.S. Government Accountability Office (GAO) is working on a report for Congress about the impact of the H-1B cap on the competitiveness of technology companies doing business in the United States. The study, which focuses on the impact of the H-1B cap on the competitiveness of U.S. technology companies, was mandated in the House Report of the Consolidated Security, Disaster Assistance and Continuing Appropriations Act of 2009.

The GAO will address issues such as:

1) The impact of the H-1B cap on the costs facing technology companies doing business in the U.S.
2) The impact of the H-1B cap on the ability of technology companies to recruit top talent,
2) The impact of the H-1B cap on technology companies’ decision to outsource jobs overseas, and
3) The impact of the H-1B cap on incentives for technology companies in the U.S. to invest in research and development in the United States?

Companies may be randomly slected for participation in the study, however, the company name and details will remain confidential.

US Immigration Policy


It’s pretty quiet on Capitol Hill this week since Congress is at recess in their home districts. Good thing, because last week when I was there lobbying the tension was pretty thick on Capitol Hill. First, members of Congress were obviously exhausted from the battle on passing the healthcare reform bill. Second, members just aren’t cooperating with one another right now.
One House Representative said that he has never seen the tension so thick – that each week it seems to worsen and the leaders in Congress are not sharing information with the Rank and File members.
Of the members and staffers I met with, there seemed to be a consensus that comprehensive immigration reform will not likely pass this year, for obvious reasons: (1) the economy; (2) the divisiveness among the Republicans and the Democrats right now; and (3) the political impact for the midterm elections in November. Members and staffers were also doubtful that piecemeal legislation on immigration would pass this year.
However, several opined that there could be some gains from pushing CIR to a vote, even if it fails. By doing so, the President and the Democrats will be viewed as “keeping their promise” to move comprehensive immigration reform. Further, it would finally open the door for piecemeal legislation on immigration. If a CIR bill is introduced (which is likely) and actually moves through both House and Senate for a vote, it will have to be on the Schumer and Graham bill that is expected to be introduced. Members were unanimous in saying the Gutierrez bill introduced in December isn’t a possibility – it was termed as dead on arrival. In fact, members acted as if there weren’t any CIR bill proposed yet — it was as if that bill was totally meaningless.
It was clear that the H-1b category is still not favored by Congress. The best potential for peicemeal legislation appeared to be in the area of retrogression relief and/or healthcare reform. In fact, one staffer said it would be key to tie immigration legislation into how it can benefit the healthcare reform bill. In other words, now that Congress has passed healthcare reform, the focus will shift to how to make it work and supplying more healthcare workers such as foreign nurses, physicians, therapists, etc. could tie into that bill, especially since there are estimates that 30 million more people will be receiving healthcare. However, the staffer of a well-known Congressional member favoring immigration said it’s imperative for members to hear from hospitals about the need. They just aren’t hearing the need right now in the field of nursing because so many nurses have returned to the workforce because of the economy, thereby creating a “false impression” that there is no longer a shortage without looking at the long-term implications.
Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN


The National Foundation for American Policy issued two reports today. One report, “H-1B Visas by the Numbers: 2010 and Beyond”, shows new H-1B visa holders represented only 0.06 percent of the U.S. civilian labor force in 2009. The report also cites USCIS data that in FY 2009 less than 6 percent of new H-1B visas went to Indian technology companies and the number of new H-1B visas utilized by Indian technology firms fell by 70 percent between FY 2006 and FY 2009. In FY 2009, 27,288 different employers hired at least one individual on a new H-1B petition, according to USCIS.

In the second report, “Take a Memo: USCIS Adds Costs, Uncertainty and Questionable Legality in Redefining the Employer-Employee Relationship“, Sherry Neal and Michael Hammond point out some problems with the January 2010 Neufeld memo, including the inconsistencies with other provisions of immigration law and other federal laws. The report notes, “the memorandum should be withdrawn and changes to the H-1B laws should be left to Congress, or at the very least, any new rules should be issued pursuant to the Adminstrative Procedures Act.”

The studies can be found on the NFAP website at The National Foundation for American Policy (NFAP) is a 501(c)(3) non-profit, non-partisan public policy research organization based in Arlington, Virginia focusing on trade, immigration and related issues. The Advisory Board members include Columbia University economist Jagdish Bhagwati, Ohio University economist Richard Vedder and other prominent individuals. Over the past 24 months, NFAP’s research has been written about in the Wall Street Journal, the New York Times, the Washington Post, and other major media outlets.

Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN


During the Spring AILA conference on Friday, March 26, USCIS Director Alejandro Mayorkas spoke of the Neufeld memo only briefly. He reiterated the goal of transparency and reaching out to stakeholders on how to improve processes, but that the Neufeld memo was an example of where they had it backwards (issuing a memo and then later reaching out for the impact). He said, “we will right any wrong that has been memorialized in that memo.”

Later in the day, the USCIS held its second open discussion topic on the Neufeld memo — this meeting focused solely on the impact to the healthcare industry. USCIS has said they will be issuing further clarification or guidance (not necessarily withdrawing the memo) by the middle of April. HLG attorneys Mike Hammond and Sherry Neal attended the session in-person. Mike Hammond pointed out to USCIS that any focus on “control” should center on control of the “employee” (terms of employment such as location, job assignment, salary, etc.) not control of the “day-to-day activities of the employee”.