Categories
Visas - H-1b, L-1, E, O, TN

L-1 RFE’s are handed out inconsistently between Service Centers?

The Service’s annual 2016 report to the Ombudsman was recently release and contained concerning information for L-1 visa petitioners. Unfortunately, the RFE rates of L-1 visas appear to continue to have no rhyme or reason.

“L-1A RFE data shows inverse trending between the CSC and the VSC. For example, CSC’s L-1A rates surged to 55 percent in FY 2015, its highest level in 20 years, while in the same period, VSC’s rate dropped dramatically from a high of 44.6 percent in FY 2014, to 29 percent in FY 2015. The number of L-1B RFEs dropped in FY 2015 at both service centers, to 44 percent at the CSC and 33 percent at the VSC.” See Ombudsman Report p. 59.

The L-1 memo, L-1B Policy Guidance Memorandum, was supposed to help alleviate some of this uncertainty. “It does not appear that RFE rates in FY 2015 were affected by this guidance, as it did not become final until August 17, 2015.” See Ombudsman Report p. 59. A very small sample size granted, but this memo was supposed to be seminal in the L-1 category. I’ll be eagerly anticipating next year’s report. What we can take away is that it looks like you’ll have a slightly better chance of getting an L-1A through Vermont and that L-1B’s RFE’s have dropped but not as much as we were hoping for when the L-1B Policy Guidance Memo was released.

Categories
US Immigration Policy Visas - H-1b, L-1, E, O, TN

L-1 Visa Statistics Released by USCIS

Pursuant to a Freedom of Information Act (FOIA) request, the USCIS last week released data regarding the adjudication of L-1 petitions. This data reveals that the denial rate of L-1 cases rose over 10% from FY 2012 to FY 2013 and in FY 2013,  an astounding 35% of all L-1 petitions filed were denied. This data covers all sectors of employment from manufacturing to  IT. Anecdotal evidence from attorneys that handle L cases for manufacturing companies, reveal an almost 100% rate of approval while those handling IT cases report a denial rate exceeding 50% and some even claim to be seeing a rate of denial as high as 75%.   The data produced from the USCIS reveals an RFE rate of over 47%. In FY 2013, the USCIS approved approximately 12,000 petitions. Contrast this to FY 2005 during which the USCIS approved over 40,000 petitions.  The practical result is that many IT projects which would be completed in the US employing a mix of L-1 and US workers and generating tax revenues, consumer spending, etc are now being completed overseas with no benefit to any US worker or the US economy. Instead of opening our arms to entrepreneurs and innovators and welcoming all jobs that benefit the US economy, our immigration policy, not dictated by Congress but,  rather dictated by the policy desires of a few is most assuredly a closed door policy.

Categories
US Immigration Policy Visas - H-1b, L-1, E, O, TN

Is there a shift in India ?

With the announcement  two weeks ago of the availabilty for certain H and L holders to have their visas re-stamped without an interview, many of us are hopeful that there has been a shift by the U.S. Consulates in India regarding the treatment of professionals working in the U.S. The last several years have seen a tremendous and unquestioned abuse of power by the US Consulates in India (and to a lesser extent in Manila) in the handling of H and L visa applicants. The U.S. Consulates have shown a propensity to re-adjudicate petitions and substitute their judgement for those of USCIS officials without any statutory or regulatory basis.  Unfortunately, their interpretation of USCIS and DOL regulations, of which they have never been trained, left a lot to be desired. Whether their backlash against H and L holders was simply a reaction to the recession and high rate of unemployment or whether it was the result of a directive from the current Administration is open to conjecture. Nonetheless,  221g notices became the bane of visa applicants and U.S. employers. Often these requests called for documentation and information that was wholly irrelevant and to many, simply designed to harass and discourage visa applicants. Among the requests that we often saw, sought records of all of the employees of a U.S. company including personal information, job titles, job descriptions, salaries, etc. Even when a U.S. employer was able to provide the information requested, the U.S. Consulates often took 6 months or more to review the additional information. A visa delayed is a visa denied. We recognize that the U.S. Consulates have a tough job but, in this blogger’s humble opinion, their job would be much easier if they focused on doing their job and stopped trying to do the job of the DOL and USCIS. Let’s hope this new policy is but the first step in a return to the fair and legal treatment of H and L visa applicants in India.

Categories
US Immigration Policy Visas - H-1b, L-1, E, O, TN

NFAP Data Should Draw Ire from the Obama Administration

Recently the NFAP released a report based upon data received from the Department of State that showed visa approvals for multi-national cos. from India had declined in 2011 by almost 30% while during the same time-frame, the approvals for non-Indian based cos. had risen by over 15%.  At a time when the U.S. economy needs job growth and a larger tax base and President Obama is regularly promoting the need for our immigration policies to encourage international commerce and entrepreneurs, it is most unfortunate that the US Consulates in India have chosen to ignore the directives of President Obama and instead apply policies that require Indian owned cos. to go above and beyond the requirements imposed under exisitng law and legal precedent and essentially meet “super-tests” to achieve approvals. One could charge racism and discrimination or the advancement of isolationism but, frankly, I’m of the opinion that the real issue is a culture that is pervasive  at the US Consulates and the USCIS Service Centers which permit officers to modify their roles from adjudicators into policy-makers and as a result, they have elevated their own policies and prejudices over that of the positions of President Obama, USCIS Director Mayorkas, and Sec. of State Clinton, and to anyone who cares about the rule of law, even more importantly, over the laws enacted by Congress and the case precedents established by Federal Courts. Unfortunately, the notion that government agencies should follow the law is a foreign concept today to the detriment of the US economy.

Categories
Green Cards US Immigration Policy Visas - H-1b, L-1, E, O, TN

White House Urged to Reform Skilled Visa Policies

Coinciding with the release of a study conducted by the National Foundation for American Policy, a group of US business leaders met with President Obama and urged him to reform the skilled visa system through the utilization of policy reforms. Though President Obama consistently talks about government getting out of the way of private business, his policy-makers at the USCIS have been acting in just the opposite manner.  The USCIS through the use of  policy memos such as the January 2010 Neufeld memo have engaged in a systematic campaign to thwart the growth of US businesses that utilize foreign workers. Specific policies have been directed at entrepreneurs and small and medium sized businesses who often drive employment growth especially in recessionary times. It is hoped that President Obama will turn some of his talk into action. The Huffington Post has published a summary of some of the proposals that were discussed during the meeting. Check it out and forward it to your friends and your Congressional reps because although there is much that President Obama could do, significant changes will likely require legislation.