Our friends to the north have been observing our current immigration system and have noted that the US policy and practice at present is to refuse work visas to high tech workers (STEM grads), entrepreneurs, and specialized workers from international companies and have decided that they may be able to take advantage of our ineptitude. I can only imagine the discussion, maybe it went something like this (picture with a Molson and hockey in the background, of course) “Don’t you think we could use an influx of some smart, talented, tax-paying, revenue creating international workers, Eh ?” Seems so simple doesn’t it, Washington DC ! With the current culture of NO so prevalent at the USCIS service centers and the failure to produce any immigration reform that among other things addresses, the over 20 year wait for a green card for an Indian national IT engineer, it is not surprising that scores of quality international workers will seek alternative opportunities and that other industrialized nations will seek to create options for them. We can only hope that they will use their Canadian resident cards to vacation in Florida and Arizona in the winter.
This really isn’t directly relevant to IT workers but, I found it interesting so I thought I would share. Often, we talk about the “Culture of No” that is so pervasive at the USCIS and US Consulates and we struggles to understand how someone can have been found to possess specialized knowledge the last 3 times their case was reviewed but, the latest L-1b extension was denied ? Or how a systems analyst has been deemed to be a specialty occupation for umpteen years but, now the California Service Center says it is not ? Or how they can, with a straight face claim that an H-1b employee who moves to a new building across campus warrants revocation ? If those questions puzzle you, check this story out. A backpacker here on a B tourist visa was arrested and detained because he was leaving the US 30 minutes past midnight on the day his visa expired. I feel so much safer that he is behind bars !
If you had received 251 L-1b approvals in a row, wouldn’t you feel pretty confident about your next L-1b filing ? As the Brazilian restaurant Fogo discovered, not in this current culture of no. For many years, Fogo had brought genuine Brazilian gaucho chefs from its restaurants in Brazil to work at its US restaurants using the L-1b visa. However, in 2010, that string of approvals ended and the USCIS determined that the position of a gaucho chef no longer met the definition of specialized knowledge. There was no change in the statue or regulations that preceded this change in interpretation of specialized knowledge and the outcome of its petitions. One day a genuine gaucho chef has specialized knowledge and the next day they don’t. Fogo thought that being genuine was important enough to pursue Federal litigation over this change in interpretation and brought an action in the Federal District Court for Washington DC. Unfortunately, the judge issued an opinion that upheld the denial. Although the decision does not directly impact IT employers, the continued tightening of the L-1b category is troubling.
How long should it take for the USCIS to process an I-485 application with a current priority date ? Certainly not 4 years, at least not without an explanation. As a result of a Federal mandamus action, a Federal judge ordered a USCIS representative to appear in Court and explain why a 485 case had taken 4 years and was still not adjudicated. The judge took particular umbrage with the USCIS written explanation which the judge stated was “no explanation at all”. Maybe we are finally seeing people willing to stand up to the abuses of the USCIS and take more matters to Federal Court where you will get an opportunity to be heard by a decision maker bound by the law, and not by the whims of this administration’s political policy or as it appears in this case, simple incompetency.
In what has become a common occurrence, a Federal judge has spared no feelings in decrying a decision taken by a USCIS agency. The latest was the Seventh Circuit Court of Appeals wherein the Court stated of the USCIS agency action, “An agency must give reasons for abandoning a precedent. The citation of the case by the Board is incomprehensible, and the government’s argument is nonsense.” In a case last year, another Federal judge reviewed an H-1b denial from the California Service Center, and declared that the examiner’s reasoning and behavior “constitute[ed] a litany of incompetence that presents fundamental misreading of the record, relevant sources, and the point of the entire petition” and suggested that USCIS “should afford a bare minimum level of professionalism, diligence, and reasoning.” Ouch. In yet another Federal Circuit case, this one from the Ninth Circuit Court of Appeals, the Judge charged the USCIS with an improper understanding of the law and with unilaterally creating and imposing new standards of evidence not required by the law. All of these decisions demonstrate a common theme by the USCIS ignoring established law and precedent and creating its own standards to achieve its desired goal of a denial. When your mandate is to deny a certain percentage of cases due to misguided visions of national security, protection of the U.S. worker, prevention of outsourcing, dissatisfaction with the current law Congress passed or even simply illusions of grandeur, it is easy to justify ignoring the rule of law. In a pure Machiavellian sense, the end goals are all seemingly good, why not break the rules. Will a new Secretary of Homeland Security mandate that the Service Centers stop creating law and simply apply the law ? Probably not; the culture of no is so deeply imbedded in the USCIS that a personnel cleansing would be needed to change it. Can Federal Court decisions like the ones cited above affect change ? Maybe; if enough individuals and U.S. employers who suffer from clearly incorrect decisions take to the Federal Courts, the political pressure created may force change and if not, at least you will get the decision you deserve and under the EAJA, the government may even be required to pay your attorney fees.
Recently, the USCIS issued a new memo regarding the issuance of Request for Evidence (RFE’s) and Notice of Intent to Deny (NOID’s). The stated purpose of the memo was to replace a prior memo that gave guidance that RFE’s “should be avoided if possible”. This new memo seems to encourage not only the issuance of RFE’s but, also reminds the Service examiners that they can deny cases without even issuing an RFE if in the examiner’s judgment, they believe that “there is no possibility that additional information or explanation will cure the deficiency”. This last reminder is what scares many of us who routinely deal with Service Center examiners. The legal knowledge that they must possess in reviewing a variety of types of petitions for countless types of companies and positions is often overwhelming. Regularly it seems that RFE responses are necessary to educate the examiner on the law, point out facts already included in the evidence or explain common practices of American business. In the past 2 weeks alone, we have had RFE’s : questioning the expiration of MSA’s with automatic renewal clauses and a current SOW referencing the MSA; requesting a tax return when a 10k was submitted in the context of questioning the ability to pay a 65,000/yr. wage by a Fortune 500 company with revenues in excess of 3 Billion dollars per year; requesting a foreign educational evaluation for an individual with a Master’s degree from a well known Pac 10 University; challenging whether an IT project manager being offered a salary of 135,000/yr was the type of position that really needed a Bachelor’s degree ; and lastly, questioning how a degree in Computer Science and Engineering qualified an individual for a position as a .Net Applications Developer. A lot of money and time is wasted each week in responding to RFE’s that frankly, should’ve never been issued in the 1st place but, with that being said, an RFE and an opportunity to respond and provide an education, is much less expensive and than having to file a motion to re-open or re-consider after the issuance of a denial. In addition to the cost factor, when an RFE is issued, for example, in the context of an H-1b transfer, the individual can continue to work, however, if a denial is issued, the employment authorized under the portability provisions of AC21 are terminated. We are hopeful that this memo will not encourage those examiners who are already deeply entrenched in the “culture of No” to use their discretion to ignore the law and the facts and start issuing denials before issuing an RFE. Frankly, I am hopeful that the Service Centers ignore this HQ memo like they ignore so many others.
In a letter to lawmakers published earlier this week by the NY Times, the Union representing USCIS officers and examiners announced their opposition to the Senate Immigration bill. I read the letter and seriously laughed out loud and then I shed a little tear (not really as I am not in the least bit emotionally in touch with myself). The letter derides illegal aliens, USCIS Headquarter policies, orders received from the Secretary of the Department of Homeland Security, President Obama’s executive orders, Federal regulations properly enacted under the APA and the current Immigration and Nationality Act. They also take shots at immigration lawyers for representing illegal aliens but, hey lawyers are fair game !
The part of the letter where they complained about being pressured to issue approvals and not having an opportunity to question petitions is particularly laughable to readers of this blog in the IT and healthcare staffing field. The scrutiny which H-1b and L-1 petitions face today is unlike anything in the past 25 years. The denial rates have soared with absolutely no change in the law. The RFE’s being issued are filled with boilerplate and often appear as if they have been issued without even a cursory reading of the record. In the last week alone, I have received an RFE challenging whether or not a physical therapist requires a college degree and another one that questioned whether a US Master’s degree in Computer Engineering was relevant to a Software Engineering position. We routinely see the USCIS questioning extensions for petitions which have been approved several times in the past with identical facts and law. If there is indeed a culture of approval, my clients are not enjoying it. In fact, the immigration bar has labeled the current culture as a “culture of No”.
It is often difficult for many of us to accept that we are subject to a higher authority and we often feel the need to rebel. We see it in the terrible 2’s and 3’s and we see it in petulant teenagers and now we see it expressed by the USCIS examiners and officers. The legal role of administrative adjudicators is to apply the rules properly and fairly. In the context of immigration petitions, the job of the examiner is to approve petitions which meet the legal regulatory standards and are supported by a preponderance of the evidence. Period, end of story. Instead, today we have countless examples of USCIS examiners and officers at the Service Centers and certain Consulates applying a different set of standards than those contained in the law and often, we experience an utter and inexplicable refusal to acknowledge uncontroverted facts. The complaints listed in this letter are simply further evidence of this rebellion. The examiners and officers do not like the authority imposed over them so they unilaterally impose their own view of how things ought to be when they adjudicate petitions. Until we get a new set of laws, I’d simply like to see the current laws followed. Don’t let politics and your own beliefs influence your adjudication of petitions. If you can’t accept that role, try for a transfer to the IRS where it seems like that type of behavior is acceptable.
Update: I’m not alone in my thoughts on this topic. Check out the great blog post by Cyrus Mehta, a well-respected immigration attorney from New York. Enjoy, bookmark, and then, of course, return to my blog !
Update#2 : Once again, another well respected immigration attorney shares my disgust with the USCIS Union letter. Read the blog post of Angelo Paparelli. Bookmark his blog as well but, don’t displace mine as your homepage 🙂
Yesterday, USA Today published excerpts of the Presidents Immigration plan and unfortunately, the President’s plan does not include any relief for persons legally pursuing immigrant status but delayed due to retrogression. Instead, his plan puts persons here without status, illegally or undocumented (choose your term) in many cases ahead of persons who are already in the EB2 and EB3 lines. This should come as no surprise to the business community who employ internatioanl workers as this adminsitration has been consistent in its promotion of a “culture of no !” The bi-partisan efforts in the Senate offer much better hope for legal immigration relief.
In spite of all the rhetoric coming from the White House on increasing entrepreneurial opportunities in the U.S. for immigrants that create jobs for U.S. workers, the opposite is the reality, as this case reported by ABC News illustrates. One must wonder, who is in charge of U.S. immigration policy ? President Obama certainly isn’t ! Right now, the hard line restrictionists led by the esteemed Senator Grassley and his cohort, Senator Durbin would be proud of the closed door policy and culture of NO that this administration has achieved.
Once again, the USCIS is publicly pretending to be the friend of entrepreneurs, investors and specially skilled foreign workers while the culture of NO remains deeply ingrained at the Service Centers and at the US Consulates. In announcing the “Entrepreneurs in Residence” program, Director Mayorkas, has once again put forth the right message. Unfortunately, his own agency is not on the same page, honestly, they are not even in the same library. It is time for the Director to stop creating new initiatives and clean-up his own house.