Category: Department of Homeland Security


New Study Finds Dramatically Increased Rates of Denials and Requests for Evidence for H-1B Professionals, L-1 Intracompany Transferees, and O-1 Extraordinary Ability Nonimmigrants

February 24th, 2012 — 6:00pm

With its analysis of new data from the government, the nonprofit, nonpartisan National Foundation for American Policy (NFAP) makes crystal clear:  Over the past four years, the U.S. Citizenship and Immigration Services (USCIS) has dramatically increased its denials of L-1 and H-1B petitions and much of the increase in denials involves Indian-born professionals and researchers. NFAP also reports a dramatic increase in denials of O-1 “extraordinary ability” petitions, and an across-the-board increase in requests for additional evidence (RFEs) for all of these categories. The data suggests that USCIS has changed the standards for these petitions, beginning in 2008–09, despite no change in the law or relevant regulations and, as a result, has demonstrated its capacity to keep skilled foreign nationals out of the United States. Here are some of the statistics from the report:

  • Denial rates for L-1B “specialized knowledge” petitions rose from 7 percent in FY07 to 27 percent in FY11. In FY11, 63 percent of L-1B petitions were delayed due to RFEs; in FY04, only 2 percent received RFEs.
  • Denial rates for L-1A executives and managers petitions increased from 8 percent in FY07 to 14 percent in FY11. RFEs increased from 4 percent in FY04 to 51 percent in FY11.
  • Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. (In FY09, the denial rate was 29 percent.) RFEs rose from 4 percent in FY04 to 26 percent by FY11.  (In FY09, the RFE rate was 35 percent.)
  • Denial rates for O-1A extraordinary ability petitions rose from 4 percent in FY08 to 8 percent in FY11. For O-1As, RFEs increased from 1 percent in FY04 to 27 percent in FY11,
  • Country-specific data on new (initial) L-1B petitions indicate USCIS is more likely to deny a petition from an Indian-born professional than from a national of another country. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent FY08 to 13.4 percent in FY11. (In FY09, the rate was 22.5 percent.)  The drop in FY11 Indian denials can be attributed to a 40 percent decline in the number of receipts for new L-1B petitions for Indian professionals between FY10 and FY11.

Employers already are selective about who they sponsor and thus petition for those who they believe meet the standard for approval. They complain, rightly so, that the time lost due to the increase in denials and RFEs are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States. Denying these businesses the ability to transfer these key personnel harms innovation and job creation in the U.S. and encourages employers to keep more resources outside the country to ensure predictability.

As noted by NFAP, the dramatic increase in denial and RFE rates for employment petitions raises serious questions about the training, supervision, and procedures of adjudicators and of the government’s commitment to maintaining a stable business climate for companies competing in the global economy.

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

Key Administrative Fixes to Immigration Laws on the Horizon: Visa Interview Waiver, Regulatory Changes, and Other Improvements

February 24th, 2012 — 5:58pm

On January 19, 2012, President Obama by Executive Order outlined several initiatives to improve visa and foreign visitor processing and promote travel as a way to create jobs and spur economic growth in the United States. The travel and tourism industry, he stated, is the country’s leading service sectors and sources of exports, yet its market share of spending by international travelers has dramatically fallen over the last 10 years. The President ordered all appropriate agencies to develop, within 60 days, an implementation plan to achieve a number of specific goals: (1) increase the nonimmigrant visa processing capacity in China and Brazil by 40 percent over the coming year; (2) ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of their application; (3) increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants; and (4) expand reciprocal recognition programs for expedited travel, such as the Global Entry program. The President also established a Task Force on Travel and Competitiveness to develop the “National Travel and Tourism Strategy.”

Dovetailing with this Executive Order, the White House  and the Departments of Homeland Security (DHS) and State (DOS) announced on January 31 steps they will take to attract and retain foreign-born entrepreneurs and highly skilled immigrants and stimulate economic growth. These include regulatory changes that would:

  • positively affect F-1 foreign students and their spouses;
  • permit spouses of certain H-1Bs to obtain work authorization;
  • broaden the scope of allowable evidence for EB-2 outstanding professors and researcher; and
  • make it easier for professional nonimmigrant workers from Australia, Chile, and Singapore to continue working while their extension of status requests are pending.

 

DHS also announced a new Entrepreneur in Residence Summit to seek information and ideas from the entrepreneurial community and academics on how to maximize current law to attract foreign entrepreneurial talent.

Waiver of Visa Interview

Several government initiatives aimed at reducing nonimmigrant visa wait times are now in play. Most significantly, DOS announced a new pilot program to waive the nonimmigrant visa interview requirement for certain visa renewals. Under the program, slated to run for two years, certain visa renewals that are more than 12 months but less than 48 months post-expiration will be eligible for renewal without a consular interview for the same visa category.  The visa interview waiver will be available to foreign nationals who have previously had their 10-print fingerprint scan collected; it will not be available to applicants who were previously denied a visa or who are listed in the Consular Lookout and Support System (CLASS) or require a Security Advisory Opinion. Nor will the interview waiver be available to applicants who may have failed to comply with U.S. immigration laws or who are applying in a “high-threat” or “high-fraud” location.  Only certain types of visas will be eligible for this benefit, and although DOS has not yet released a comprehensive list, it is projected that F, J and M visas will be included.  On February 13, the U.S. Embassy, Beijing launched its visa interview pilot program for certain B, C, D F, J, M, and O visa holders consistent with the procedures outlined above by DOS. More details are likely to emerge over the next few weeks.

Additionally, Brazilian citizens younger than 16 or older than 66 who are applying for an initial visa or renewal visa (regardless of classification) and are citizens or residents of the country in which they are applying can forgo the consular interview and fingerprint requirement.

Expanded Service in Brazil and China

Besides the changes to the interview requirements in China and Brazil noted above, DOS has expanded its visa processing capacity in those countries by deploying additional personnel, expanding visa sections, and using new systems to facilitate travel from these countries. In late 2011, DOS had reported a record demand for visas for nationals from Brazil and China, a 50 percent increase in one quarter. For Brazil, the increase in demand reflected a 200 percent increase in five years; for China, a more than 30 percent increase from last year. Noting that every additional 65 international visitors to the U.S. translates into one additional travel and tourism-related job, Brazil and China are now considered key growth markets for the United States.

Visa Waiver and Global Entry Programs

The expansion of the Visa Waiver program to additional countries will mean that fewer international business and tourism visitors will need to apply for a visa. Citizens from 36 countries currently can participate; last month, Taiwan was nominated for inclusion.  Pressure is now on DHS and DOS to increase the number of countries whose eligible citizens can travel without making a formal application.

In another move to ease the international-arrival process, DHS Secretary Napolitano announced a final rule, effective March 7, 2012, making the Global Entry program a permanent one and providing CBP with the ability to expand the program to additional U.S. international airports. Global Entry allows certain pre-approved, low-risk travelers to streamline the international arrivals and admission process at airports.  Currently, the program is available to U.S. citizens, permanent residents, and certain other nationals. In addition, the rule changes the age eligibility criteria to allow more families to participate in the program: persons under age 18 who meet the general eligibility criteria and have the consent of a parent or legal guardian will now be eligible to participate in Global Entry. DHS advises that those individual currently enrolled will not experience a break in membership or need to re-apply when the program becomes permanent. Members currently participating in the pilot will have their time credited to the five year membership. According to DHS, the majority of travelers using Global Entry are processed in under five minutes.

Upcoming Regulatory Proposals 

As mentioned above, DHS also announced a number of regulatory changes that would:

  • expand the eligibility requirements so that more F-1 students would be eligible for 17-month optional practical training (OPT) rather than 12-month OPT now available to them;
  • permit spouses of F-1s to enroll in part-time academic classes, rather than only vocational or recreational classes;
  • provide work authorization for H-4 spouses while their H-1B spouse waits for his or her adjustment of status application to be decided;
  • expand the scope of evidence of academic achievement to prove that a professor or researchers is outstanding; and
  • permit E-3 Australians and H-1B1 Chilean and Singaporean nationals to continue to work for 240 days with their same employer while their extension of status requests are pending, provisions that are available to other nonimmigrant workers.

All of these initiatives come as welcome news, from the more modest to bold. The regulatory changes and visa interview waiver could positively impact American business and facilitate the entry and employment of needed talent at a time when the U.S. continues to struggle to recover economically and remain competitive. But, as highlighted below, real change must happen – and happen fast – at the adjudicatory level, where immigration and consular officers wield tremendous power and ability to keep out skilled foreign nationals. Rigid, restrictive interpretations of regulatory eligibility requirements by front-line decision makers will trump more generous policies time and time again.

Comment » | Department of Homeland Security, Department of State, H-1B, Visa waiver program

Immigration and the Executive

December 19th, 2011 — 11:16am

While the Justice Department efforts to protect individual rights and to preserve the right of the federal government to enforce immigration law have been laudatory, a number of other significant policies of the current Administration have angered pro-immigration supporters, not the least of which has been the record number of deportations that have transpired in the last three years. Some 1.2 million undocumented foreign nationals have been deported since President Obama took up office, compared to almost 1.6 million deported during the eight-year Presidency of George Bush. In FY2011 alone, an unprecedented 400,000 people were deported. However, just last month the Administration took real action to provide relief for the undocumented who pose no threat to the country and who commit no crime.

Prosecutorial Discretion

 A new DHS-ICE policy encouraging the exercise of prosecutorial discretion in appropriate cases was launched in mid-November – complete with fairly comprehensive guidelines and procedures – and is being piloted in Baltimore and Denver, December 4 through January 13, 2012. DHS (the Department of Homeland Security) had announced in June its intent to eliminate low priority cases from the immigration court dockets and instead focus its enforcement priorities on the removal of those who have broken criminal laws, threats to national security, recent border crossers, repeat violators of immigration law, and immigration court fugitives. In August, DHS and ICE (Immigration and Customs Enforcement) issued a directive to ICE attorneys to review pending court cases as well as cases where a charging document had not yet been filed to determine if the agency should decide not to prosecute the case. DHS also announced the establishment of a joint DHS-DOJ working group to review the approximately 300,000 pending cases and identify cases for administrative closure. The pilot program just launched was designed to identify cases most clearly eligible and ineligible for a favorable exercise of discretion. During a six-week period, USCIS, ICE, and CBP (Customs and Border Protection) attorneys are to review cases according to the agency’s general prosecutorial discretion guidance as well as by a set of more focused criteria. Ultimately, DHS expects to implement “best practices” on an ongoing basis nationwide.

While it is still too soon to judge the results of the pilot program and the impact of the agency’s new policy, in Baltimore, at least, removal cases normally set in December and January have been scheduled well into the future.  Stay tuned.

Other DHS guidance issued in November on when immigration charging documents should be issued dove-tails with its prosecutorial discretion policy.

Adjudications, Entrepreneurs, Small Business

More informally, the Administration has engaged the public and immigration stakeholders on a variety of issues and has done so more directly that ever before. Recently, the USCIS Ombudsman’s Office held an Annual Conference attended by 300 to discuss improving the delivery of immigration benefits and services. USCIS also has hosted a number of teleconferences with the public. A teleconference was held on USCIS’s then-changed policy on where and to whom I-797 approval notices are sent. (Feedback from the call contributed to USCIS changing its policy.) Another teleconference was held on small and start-up business immigration issues and involved not only immigration officials but those from the Small Business Administration and other federal agencies. On a related note, USCIS just launched an “Entrepreneurs in Residence” initiative and hopes to bring business experts in-house to work alongside USCIS staff to ensure that its policies are reflective of industry realities. This could be a valuable opportunity for business experts and immigrant entrepreneurs, especially those who have engaged in the U.S. immigration system through immigrant visa applications, to join USCIS’s tactical team and affect how the agency adjudicates cases. Business members, however, must be U.S. citizens. To apply for the Entrepreneurs in Residence program, see http://www.dhs.gov/xabout/careers/loaned-executive-business-expert-uscis.shtm

It’s anyone’s guess whether the Administration’s formal policy changes (prosecutorial discretion) or its informal meetings and public engagements will result is administrative fixes that have real teeth. At the end of the day, however, these changes represent only modest remedies to a system that cries out for wholesale reform.

Comment » | Customs and Border Protection, Department of Homeland Security, Immigration and Customs Enforcement, Immigration reform, Worksite enforcement policies

Immigration and the Courts

December 19th, 2011 — 11:11am

Supreme Court Enters Arizona Fray

On December 12, the U.S. Supreme Court agreed to decide whether Arizona may impose its tough anti-immigration law, S.B. 1070, including a requirement that state-law enforcement officials determine the immigration status of anyone they stop or arrest if the officials have reason to believe that the individual might be an undocumented immigrant. The Ninth Circuit blocked the provision and others in this Draconian, controversial law, which was enacted in 2010 and spawned copycat legislation in a number of other states.  By taking on the case, the Court has thrust itself into the center of American political life and will weigh in on what has been called one of the most combustible issues in American politics. The Supreme Court’s ultimate decision in the case, however, may not have precedential value. Justice Elena Kagan will not take part in the decision of the high court – she worked on the issue previously while solicitor general – which raises the prospect of a 4 to 4 vote. If that were to happen, the Court’s decision would carry no precedential significance for the other state laws being challenged. The Court is expected to hear the case in April.

 Federal Court Challenges to Utah and South Carolina State Immigration Laws

In the wake of congressional inaction on immigration, state legislatures continue to attempt to reform the law and the federal government continues to wrestle with the states to maintain its control or preemptive rights over the issue. As these battles persist and are played out in the federal courts, the Department of Justice (DOJ) has been center stage.  In addition to suits in Arizona and Alabama, DOJ recently filed a lawsuit in federal district court against a South Carolina law, Act No. 69, parts of which go into effect, on January 1.  Filed on behalf of the Departments of State, Justice, and Homeland Security, the lawsuit argues that certain provisions of the South Carolina law are unconstitutional and interfere with the federal government’s authority to set and enforce immigration policy. Then, on November 23, DOJ filed another suit, this time against Utah, to block implementation of HB 497, which mandates that local police enforce immigration laws. These laws are similar to those in Arizona (SB 1070) and Alabama. (The same day the Supreme Court accepted review of Arizona’s SB 1070, a federal court blocked a provision of Alabama’s immigration law that would have forced undocumented immigrants to leave their mobile homes. The ruling means that people paying for their annual mobile home registration tags required for residence will not have to prove their legal residency for now.)  DOJ is also reviewing laws in Georgia and Indiana that already have been challenged by private groups and individuals.

In its press releases announcing these lawsuits, DOJ cited the irreparable harm caused by the laws, including “the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.” The reality of this concern was borne out recently when a German Mercedes Benz executive was arrested under Alabama’s anti-immigrant law while in town visiting the automaker’s facilities, followed by the arrest of a Japanese Honda employee also in Alabama.

Clearly, DOJ’s efforts in these cases reflect a commitment to protecting constitutional principles and individual rights, which we applaud.

Comment » | Department of Homeland Security, Worksite enforcement policies

Certain Provisions of Alabama’s Anti-Immigration Law Blocked by Court; Others Go into Effect

November 2nd, 2011 — 2:11pm

In late September, a federal district court blocked certain portions of Alabama’s controversial immigration law, HB 56, from taking effect, ruling that there is a substantial likelihood that the U.S. government can establish that the provisions are preempted by federal law. The provisions upheld, however, include those that authorize local police to inquire about a driver’s immigration status during routine traffic stops or arrests if reasonable suspicion exists that the person is in the United States illegally; and requires public schools to verify students’ immigration status. The law also provides that undocumented foreign nationals can be charged criminally for willful failure to carry federal immigration papers, and any contracts entered into by an individual who is undocumented as well as transactions between any division of the state and an undocumented immigrant are legally nullifiable. The Department of Justice  (DOJ) sought an emergency stay of the decision at the 11th Circuit Court of Appeals on October 7th.

While the status of the law remains uncertain, its effects are already being felt.  Many undocumented immigrants are fleeing the state, workers are no longer reporting to their jobs, and undocumented children (and children of undocumented parents) are no longer attending classes. In requesting the emergency stay, the DOJ claimed that the new law was highly likely to expose persons lawfully here, including schoolchildren, to new difficulties in their daily affairs, and that the legislation could impact diplomatic relations with foreign countries. DOJ set up a hot line to report potential civil rights concerns related to the impact of Alabama’s immigration law.  Call 1‐855‐353‐1010 or email hb56@usdoj.gov.

While clearly one of the most draconian new state laws, the National Conference of State Legislature reports that from January 1 to June 30, 2011, 40 state legislatures have passed 151 immigration-related laws and 95 resolutions.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

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Comment » | Department of Homeland Security, E-Verify, I-9, Immigration and Customs Enforcement, Worksite enforcement policies

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