Turning the Corner? Draft Memo Points to Limited Progress on L-1B Visas

April 28th, 2015

The U.S. Citizenship and Immigration Services (USCIS) has released a guidance memo on L-1B visas for “specialized knowledge” workers, finally fulfilling a promise made in 2012. Issued as a draft, the agency will accept comments through early May and the final version will go into effect at the end of August 2015.

Employees are said to hold “specialized” or “advanced” knowledge if their expertise isn’t easily transferrable to another employee. The L-1B visa category is one of few tools available to multinational companies to transfer staff with specialized knowledge from a foreign branch to a related U.S. office, but recent dramatic increases in L-1B denial rates have frustrated many businesses. This guidance offers modest clarification to the current USCIS concept of “specialized” and “advanced” knowledge and includes a checklist of acceptable conditions for L-1B applications.

Recent denial rates for L-1Bs have been staggering. Based on recently released data from USCIS, the National Foundation for American Policy (NFAP) found that the denial rate for L-1B petitions increased from six percent in 2006 to an historic high of 35 percent in 2014, even as applicable laws and regulations remained unchanged.1 Incredibly, the denial rate for L-1B petitions for Indian employees stood at 56 percent for 2012 through 2014, compared to an average denial rate of 13 percent for all other nationalities. The NFAP report also found that the number of applications received by USCIS dropped by 23 percent between 2012 and 2014, demonstrating that denials have discouraged U.S. employers from transferring these skilled individuals into the United States.

The American Immigration Lawyers Association (AILA) welcomed the draft of the long-awaited policy memo. “Uneven adjudication of L-1B visa applications over the last several years have stymied businesses trying to ramp-up production or services in the United States, hurting the economy and costing American jobs,” notes AILA President Leslie Holman. “The tenor and tone of the memo is a positive step forward, reiterating and expanding on many of the principles in previous memos. We hope for a more seamless, straightforward, and consistent adjudication system for L-1B visas. Training USCIS staff on the guidance laid out in this memo will be critical to making a real difference in how applications are evaluated, and essential to bringing common sense back to this process.”2

The principal concerns about the memo are whether certain restrictive adjudication practices will become institutionalized and if Service Center personnel will follow the guidance on recognizing an earlier approval for the same employer and employee when the approval was granted by a U.S. Consulate for a blanket L-1B petition.

 

References:

1“L-1 Denial Rates Increase Again For High Skill Foreign Nationals.National Foundation for American Policy, NFAP Policy Brief, March 2015.

 

2 “Welcome Changes to Business Visas but Implementation Means Everything.” American Immigration Lawyers Association, March 25, 2015. http://www.aila.org/advo-media/press-releases

Comment » | Department of Homeland Security, I-129, L-1

Immigration Inaction: What Congressional Gridlock Means for Immigration Reform

March 26th, 2015

Last November, Obama exercised executive action to create substantial changes to the immigration system and enforcement, extending protection from deportation to over four million undocumented immigrants, expanding legal immigration of skilled workers, and providing temporary deportation relief to immigrants meeting certain criteria.

While the Obama Administration and other Democrats are attempting to give undocumented immigrants a pathway to citizenship, beginning with deferred action, ultimately, only Congress can decide who should qualify for legal status.

Congressional Republicans set the stage for a massive showdown over the President’s immigration action last December. When striking a deal to authorize federal spending, Congress extended the Department of Homeland Security’s (DHS) funding through March of 2015, despite extending funding for most other departments through September of 2015. By cutting off the DHS’ funding in March, it provided Republicans with the opportunity to use the nation’s border and homeland security as a political tool to prevent the implementation of the President’s executive actions on immigration.

Ultimately, the Republican-controlled Congress sent legislation to Obama funding DHS without the immigration-related concessions they had demanded, avoiding the potential, partial shutdown of DHS. This decision was, in part, due to the Homeland Security Department’s anti-terrorism responsibilities. It would be hypocritical of the Republican party to support the fight against terrorism abroad, while not funding our homeland security efforts just to make a political point.

At the same time, presidential hopefuls aren’t offering many ideas, choosing to focus on enforcement and border security rather than real reform. At the recent Conservative Political Action Conference (CPAC), the general consensus among candidates, often contradicting past views, was that an enforcement-first approach must be taken on immigration policy: no comprehensive reform makes sense without first securing the border. Yet none have defined what a secure border looks like.

Most Americans understand the importance of an improved immigration system, and our economy only benefits from creating employment opportunities for highly skilled immigrants and other immigrant workers. Sadly, Congress lags far behind public opinion in the importance of moving forward on immigration reform.

 

Comment » | Immigration Policy Center

Legislators Look to Highly Skilled Immigrants to Revive Startup Activity

February 23rd, 2015

Despite the buzz surrounding Silicon Valley, startup activity in the U.S. has been in decline. In fact, business “deaths” have been outpacing business “births” for several years. That’s bad news for the U.S. economy, which depends on the large share of jobs created by new businesses every year.

However, highly skilled immigrant workers could help reverse this trend. And the latest version of the Startup Act, if passed, might help open some doors.

Proposed by Jerry Moran (R-Kan.) and Mark R. Warner (D-Va.), the Act is intended to revive America’s entrepreneurial economy. The Act would create an “entrepreneur visa” that would allow up to 75,000 non-citizens to start and grow a business in the U.S., meeting certain benchmarks over a three-year period. The Act also includes a new visa category for up to 50,000 foreign-born students who graduate from U.S. universities with degrees in science, technology, engineering or math (known as STEM skills). Currently, these students—the world’s best and brightest—are required to leave after completing their studies here. The Act would also eliminate caps on the number of work visas that can be granted to individuals from each country.

Critics say the U.S. is already saturated with high-skilled STEM workers who could siphon off jobs or lower wage scales and salary expectations. However, even in the current system, visas designed for foreign workers with STEM expertise are portable; these are often highly skilled professionals, well compensated and free to move on to other positions. A study from the Harvard Business School found that the program for foreign workers “has played an important role in U.S. innovation patterns” over the past 15 years. In fact, patents increase when visa caps are higher. And of course, it’s worth keeping in mind that even immigrants who have earned degrees in non-STEM areas are vital to creating new businesses. The founders of PayPal, YouTube and Skype are just a few examples.

With the current immigration climate in Washington, the Start-Up Act has had trouble gaining traction—even after three iterations since 2011. But the fourth time may be the charm. And if it passes, the U.S. economy and its workers stand to reap the benefits.

Comment » | Immigration reform

National League Versus American? The Disconnect Between Federal and Local Attitudes on Immigration.

January 25th, 2015

Between President Obama’s Executive Action on immigration and the upcoming presidential election, there has been a great deal of rhetoric about immigration at the federal level. Positive actions, however, are almost entirely taking place at the local and state level.

What is happening – and why is there such a disconnect?

Cities are almost overwhelmingly in favor of a more welcoming attitude towards immigrants. From the Cities for Citizenship campaign, a national initiative working to increase citizenship among eligible permanent residents, to Welcoming America’s Welcoming Cities and Counties initiative, city leaders are looking to community partnerships and other collaborative strategies to drive immigrant integration.

And while half of the states have joined a lawsuit challenging President Obama’s executive action on immigration, many local leaders in those states have come out in support of it. In early December, Cities United for Immigration Action was launched by a coalition of almost 50 mayors of cities spanning the country.

Not all news at the state and federal level is negative, though. Three years ago, Florida almost passed a bill that would have required law enforcement to check the status of anyone  believed to be in the country without legal status. This May, it became one of 15 states to pass DREAM Act legislation allowing young undocumented immigrants to pay the same in-state college tuition rates as other Florida residents.

And as of January 1, 2015, California and Connecticut became the latest states to allow undocumented immigrants to apply for driver’s licenses. Response was unprecedented – California had 17,000 applicants by the end of opening day and the California Department of Motor Vehicles projects some 1.4 million immigrants will seek licenses over the next three years. In Connecticut more than 6,500 undocumented residents obtained testing appointments online the first day they were available.

And in the courts, a federal judge issued a preliminary injunction barring workplace raids targeting suspected illegal immigrants by Maricopa County Sheriff Joe Arpaio. The judge said it was likely the advocates seeking the injunction would prevail in their U.S. District Court lawsuit claiming that the raids are unconstitutional and that federal law trumps two state statutes used to back them. Courts also have struck down Arizona’s human smuggling law and ban on driver’s licenses for undocumented immigrants.

Two explanations immediately come to mind for the difference between local and national political attitudes towards immigration. The first is purely political – elected officials supporting or proposing legislation or other acts that they believe will boost their standings in the polls, particularly with their base. This certainly explains politicians who vocally endorse laws that have almost no chance of being either passed or brought to a vote.

The second explanation is of greater concern. Perhaps elected officials on the ground in our cities and towns see the real impact of immigrants and immigration policies on our communities. According to a report from the Pew Charitable Trusts, immigrants contribute to growth in many counties, particularly in growing regions of the country such as Sun Belt South, Mountain West, and Pacific Northwest regions. City officials in those regions can see how immigrants contribute – and how policies discouraging immigrants from fully participating in the local economy inhibit growth.

As states pursue lawsuits spurred by Obama’s executive action, and federal policymakers seek to block its enactment, we can only hope that pressure from our cities offsets and ultimately overwhelms national-level anti-immigration bias.

 

Comment » | Immigration reform

The Benefits of Obama’s Executive Action

December 5th, 2014

What’s the Plan?

On November 20th, 2014, President Obama finally announced his plans for executive action on immigration reform. While it’s only a temporary solution to a long-term problem, it will help almost half of all undocumented immigrants gain official status — nearly five million people.

President Obama’s plan extends the temporary relief from deportation of the Deferred Action for Childhood Arrivals (DACA) to undocumented parents of U.S. citizens and lawful permanent residents. In order to temporarily stay in the U.S. for 3 years, qualified individuals will have pass a background test and pay any back taxes. The plan also moves the window to include even more DREAMERs.

Who Benefits

The most obvious benefit will be improved quality of life for many undocumented immigrants. Moving from the shadows and into a fully recognized status can mean more opportunities, more work, and greater stability for their families. Also, many currently working in the gray economy will see an increase in wages.

That will also result in increased tax revenue for the U.S. Previously, only a third of undocumented workers and the people that employed them paid payroll taxes. Now, with official status, we can expect to see an increase in the gross domestic product up to .9% (nearly $210 billion over 10 years). The first year alone will net the federal government $3 billion.

But what about the “increased competition” for low-wage work? Many experts believe that the plan will lead to an increased average wage of about .3%. While not much, it’s certainly not the fall in wages that most opponents of immigration reform expect. And now that nearly one half of undocumented immigrants will compete on an even playing field with citizens, there won’t be such a large potential source of below-minimum-wage labor. Many companies have been asking for reform like this for quite a while.

Who Doesn’t Benefit

President Obama’s plan leaves some immigrants undocumented and negatively impacts at least one industry.

First, undocumented immigrants who arrived within the last five years don’t qualify. This means that over 10,000 Central Americans who have fled the violence in their countries since 2010 will remain undocumented for the time being.

Second, the private prison industry will lose out on the massive amounts of detainees awaiting deportation. While it’s unfortunate that an industry will take a hit as a result of the president’s actions, fewer detainees is generally a good thing.

Why It’s Good For Us

The President’s plan is certainly the temporary help that many both citizens and undocumented immigrants need — it’s just not the overarching reform that the U.S. desperately needs. While critics have found way to admonish the President, ImmigrationPolicy.org notes that every president since Eisenhower has executed similar executive actions for certain groups on immigrants. With nearly 39 examples, executive action for immigrants is essentially a Presidential precedent at this point.

Hopefully this plan will push Congress to finally bring meaningful reform when they see how much it helps immigrants, citizens and businesses all over the U.S.

 

Comment » | Immigration Policy Center, Immigration reform

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