Category: Department of Homeland Security

The Effects of Merit-Based Immigration

March 9th, 2018 — 12:55pm

Donald Trump has made cuts to immigration a major focus since the beginning of his presidential campaign. From the border wall and massive deportation to the ongoing DACA debate, Trump’s hardline stance on immigration has been anything but subtle.

As of late, his focus is on merit-based immigration and ending family-based immigration, or “chain migration.” In an opinion piece for The Washington Times, Attorney General Jeff Sessions argued that a merit-based system would allow “the best and brightest” to enter the country, saying that the current system relies on whether or not the individual has a relative in the U.S. to sponsor them rather than assessing their potential contributions.

Donald Trump’s definition of “merit” is not crystal clear. His proposed system, modeled after Canada’s, assigns points based on factors such as work experience, age, and language skills. The U.S. proposal, however, accounts for spouses’ points, which can affect the applicant’s total points. For example, if the spouse scores lower than the applicant in their education or English skills, the applicant’s score would be lowered, putting them in a difficult position to immigrate with their family.

This proposed system would essentially reduce legal immigration by making applicants decide whether to immigrate or stay with their families.

An analysis by David Bier and Stuart Anderson of the White House plan concludes that the number of legal immigrants would be cut by up to 44 percent annually, equating to nearly 22 million fewer legal immigrants over the next five decades. It’s important to note that reducing legal immigration will not affect the number of undocumented immigrants in the country, especially those working in lower-skilled jobs.

If the administration truly wants to adjust immigration policy to improve the economy, it might be wiser to favor highly skilled immigrants in specialty industries. However, the Department of Homeland Security said it would revise the definition of “specialty occupation” through the H1-B visa program, thus making it harder for skilled immigrants to legally work long-term in the U.S.

Moving forward with a merit-based system, we could see a significant slowdown in economic growth in the U.S., as labor shortages are being reported from all around the country in industries with varying skill levels. And considering that nearly half of Fortune 500 companies were founded by first- or second-generation American immigrants, the potential for entrepreneurship and innovation will suffer.

Just as a border wall won’t stop undocumented immigrants from coming to the U.S., rolling back legal immigration will not boost the economy. Only a sharp focus on comprehensive immigration reform can help on all fronts.

Comment » | Department of Homeland Security

Trump vs. H-1B Visas

January 22nd, 2018 — 11:36am

President Donald Trump has taken a hard stance on immigration since day one of his campaign. From his beloved border wall to his harsh words against Mexican immigrants, one of his most prominent talking points is a crackdown on immigration.

Outside of “illegal immigration,” Trump has shifted his sights to changing the H-1B visa program. Below is a brief timeline of the Trump administration’s attack on H-1B visas:

April 2017

On April 17, President Trump signed the “Buy American, Hire American” Executive Order while speaking at a tools manufacturer in Kenosha, Wisconsin. The order is meant to direct federal agencies to review and propose changes to the H-1B visa program as well as maximizing the amount of American-made products — such as steel, iron, aluminum and cement — that they purchase.

September 2017

Data reviewed by Reuters shows that the Trump administration is challenging more visa applications than previous administrations, making it more difficult for skilled foreign workers to work in the United States.

U.S. Citizen and Immigration Services (USCIS) data reveals that it issued some 85,000 requests for evidence, a 45 percent increase from the same period last year. The requests can make it harder for employers to receive H-1B visas since they typically must provide additional evidence proving their eligibility as well as why they require the visas.

October 2017

In October, USCIS updated its policies to “instruct officers to apply the same level of scrutiny to both initial petitions and extension requests from certain nonimmigrant visa categories.” Not only could the update make visa renewal more costly for employers hiring foreign workers, but it has also been criticized as making the process unnecessarily hard to prompt employers to hire more Americans instead of foreign workers.

December 2017

The Department of Homeland Security could consider regulations to prevent H-1B visa extensions as part of a proposal drafted as part of the “Buy American, Hire American” executive order. Hundreds of thousands of foreign workers could potentially lose their H-1B status while waiting for the immigrant visa quota to move forward so they can file their green card applications.

 January 2018

USCIS reversed its proposal to essentially force skilled foreign workers out of the country, stating, “… USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit.”

Donald Trump’s views on immigration views are strong and clear — from overtly racist to plain hopelessly uninformed. By targeting skilled foreign workers — many of whom are necessary in the tech industries — Trump is not only showing his bias against immigrants, but also obstructing the possibility economic growth for both U.S-born and foreign workers in the booming technology sector.

Comment » | Department of Homeland Security, H-1B

Make America Great For Immigrants Again

July 27th, 2017 — 1:32pm

For decades, immigrants across the globe have come to the United States with the goal of building a better life. The promise of new opportunities — and even the ability to start their own companies — is a large driving factor for many immigrants coming to the U.S., and has made a difference in the country’s economic health. Yet, in recent years, perceptions of what it means to be an immigrant in the United States have changed, which could lead to detrimental effects on the economy.

A recent study by U.S. News & World Report ranked the “Best Countries for Immigrants,” where more than 21,000 respondents from all over the world assessed 80 countries based on characteristics including being “economically stable,” having a “good job market” and “income equality,” and “is a place I would live” overall. U.S. News also took factors like integration for immigrants — including language training and job certification transfers — remittances migrants sent home and the overall number of migrants in their overall population.

Sweden took first place in the rankings, followed by Canada, Switzerland, Australia and Germany finishing out the top five. The U.S. ranked at No. 7, following Norway.

It’s understandable that amplified rhetoric against immigration throughout the 2016 U.S. presidential election likely helped contribute to respondents’ current perceptions of the country in terms of being a place they would live. Adding to this, U.S. immigration policy continues to change under the Trump administration, with talk of cutting annual immigration by half, express deportations for convicted foreign nationals and, of course, the border wall.

To help improve views of the U.S. for potential immigrants — and their quality of life should they plan to immigrate — organizations across the country are working on ways to aid immigrants and help attempt to change policy. One such organization, the Niskanen Center, is developing a series policy briefs focusing on immigration reform for key issues, including visa overstays, H-1B visa reform, entrepreneurial visa reform and more.

Researchers noted that the process of developing “Best Countries for Immigrants” list showed that many view immigration as the most important issue facing our world — and rightfully so. Reductions in the flow of immigrants generally do not improve the economy. Quite the opposite, immigrant populations make up a large portion of the U.S. workforce, and make up 18 percent of U.S. business ownership as of 2016.

The U.S. is at its greatest when it gives immigrants a seat at the table. But to keep our potential immigrant population from choosing a different home base, the next few years will require hard work to push for immigration reform that allows these opportunities for economic growth to be met.



Comment » | Department of Homeland Security, Immigration and Customs Enforcement

The Travel Ban on Refugees vs. International Law

June 26th, 2017 — 9:36am

Having set the rhetorical bar high during his campaign, President Trump has taken several steps attempting to make good on his promise to restrict immigration. Arguably, the most controversial of those – “The Wall” notwithstanding – is his executive order to ban U.S. entry to travelers, including refugees, from six Muslim-majority nations: Yemen, Syria, Sudan, Somalia, Iran and Libya.

The ban for travelers would be in effect for 90 days – 120 days for refugees – while the government reviews possible improvements in vetting procedures. Immigrants from these six counties working in the U.S. under H-1B visas need not worry about deportation — or the travel ban — though immigration lawyers advise against leaving the country until the conditions of the ban are changed or lifted entirely.

Since announcing the order, the 4th U.S. Circuit Court of Appeals invoked a freeze on the ban – deeming it discriminatory – and the decision was upheld by the 9th Circuit Court. Now, the Trump administration has asked the U.S. Supreme Court to allow the ban to go into effect.

While this life-and-death refugee drama continues to play out domestically, the proposed ban may well face another problematic challenge: it appears to violate several international treaties ratified by the United States. Following the massive displacement of populations as the result of World War II, the Refugee Convention of 1951 was ratified by 145 State parties, defining the term “refugee” as well as the legal obligations of States to protect them.

Further, the 1967 Protocol Relating to the Status of Refugees, an update to the Refugee Convention, prohibited discrimination on the basis of race, religion or national origin. Some of the provisions of these agreements have even been incorporated into U.S. law and cited as binding by the United States Supreme Court.

Steffen Seibert, spokesperson for German Chancellor Angela Merkel, said in a statement, “The Geneva Refugee Convention requires the international community to take in war refugees on humanitarian grounds. All signatory states are obligated to do (so)…She (Merkel) is convinced that the necessary, decisive battle against terrorism does not justify a general suspicion against people of a certain origin or a certain religion.”

Meanwhile, ironically, the executive order cannot displace domestic legal obligations. So those who do manage to reach U.S. soil claiming asylum will have to have their claims examined. The duty not to return a person to a state where they may face torture or other serious harm is absolute under the UN’s Convention Against Torture – which the United States has signed and ratified.

Of course, the question of whether the ban violates international law will only come into play should the Supreme Court decide in favor of the administration. Then, if Trump forges ahead, will the international community attempt to “punish” the U.S. or, if unwilling to do so, will they make plans to increase their own refugee resettlement programs?

Only time will tell.

Comment » | Department of Homeland Security

USCIS Announces Suspension of H-1B Premium Processing

March 5th, 2017 — 11:24am

What Happened?

On March 3, USCIS unexpectedly announced the temporary suspension of premium processing service for all H-1B petitions filed on or after April 3, 2017. Premium processing is a USCIS program that provides for a 15 day initial review in exchange for a $1,225 filing fee. USCIS has indicated that this premium processing suspension may last for up to six months.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. This includes extension and amendment petitions. Further, since new cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed under the fiscal year 2018 H-1B regular and master’s degree caps. The suspension also applies to petitions that may be cap-exempt, such as those filed by universities and other cap-exempt employers.

USCIS will continue to premium process H-1B petitions if the premium processing request was properly filed before April 3, 2017. Other types of petitions eligible for premium processing may continue to utilize the expedited service.

Why Did USCIS Make This Surprise Announcement?

According to USCIS, this suspension of premium processing is being implemented in order to help reduce overall H-1B processing times, which are currently running close to a full year in some instances. USCIS claims that by suspending premium processing, they will be able to focus on processing long-pending petitions that have gone unprocessed because of the large numbers of premium processing requests in the last few years. USCIS will also prioritize processing of H-1B extension petitions that are nearing 240 days pending, since the automatic extension of employment authorization only lasts for 240 days after the prior petition expiration.

Are There Any Exceptions?

During the premium processing suspension, petitioners may still request expedited processing if they meet certain criteria. USCIS reviews expedite requests on a case-by-case basis and requests are granted at their discretion. USCIS may expedite a petition or application if it meets one or more of the following criteria:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
  • USCIS error; or
  • Compelling interest of USCIS.

In our experience, expedite requests are rarely granted.

What Is The Practical Impact For Companies and H-1B Employees Who Need Extensions in 2017?

Many H-1B employers routinely utilize premium processing service, in part because USCIS processing times have become so unreasonably long, and H-1B extensions can be filed no more than six months prior to expiration. Lengthy H-1B processing times during the unavailability of premium processing will present the following significant challenges:

  • Many H-1B employees will lose the ability to travel for business or pleasure because they will be unable to obtain a new visa to reenter the U.S. without an extension approval notice;
  • H-1B employees and their H-4 spouses may be unable to renew driver’s licenses;
  • H-1B employees seeking to change employers will either have to resign their current position and “port” to the new employer using the filing fee receipt from the new employer’s H-1B petition (without the certainty of an approved petition) or wait many months for the new employer’s petition to be approved.

Zulkie Partners will be working closely with clients to minimize the disruption caused by the sudden policy shift at USCIS.

Comment » | Department of Homeland Security, H-1B

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