I’ll be the first to admit that many of the immigration issues facing our country are highly complex and highly debatable as to solutions however, there are other issues with solutions that seem as plain as the nose on your face so why can’t those be fixed ? A Stanford Law School professor, Mariano-Florentino Cuellar, has just published an interesting article in the UC Irvine Law Review trying to answer this very question. I know that most of my readers, like me, normally only read articles as long as a comic strip but, make an exception and read this if you are a political junkie or just plain curious.

Recently, the Harvard Business Review published an article discussing the battle to retain US educated international STEM grads and the need for improved US immigration policies to enhance US businesses trying to retain this talent as opposed to the current climate, where US immigration policy often forces STEM graduates to offer their talents overseas.

In a surprising development, both parties in Congress stopped campaigning, posturing, and fighting long enough to actually enact legislation designed to create US jobs and spur development via the passage of the Jobs Act.  At least one entrepreneur supporter/venture capitalist, Steve Case,  believes that there is a connection between a legal immigration policy that welcomes entrepreneurs and highly skilled immigrants and new U.S. jobs growth  and he has the facts to back up his argument.  He also believes that the same arguments which resulted in bi-partisan support for the Jobs Act, may be persuasive enough to pass reforms in the legal immigration system. In his way stands Senator Grassley, the staunchest opponent of legal immigration, who like my 2 yr. old grandson, loves the word No ! However, Senator Grassley does like new jobs so there is hope that he will be able to move past his anti-immigrant leanings and support legal immigration reforms.  Also, standing in the way are groups that want the issue of illegal immigration tied to legal immigration to more easily enact a type of amnesty or pathway to citizenship. Whether Mr. Case is able to overcome these major obstacles and achieve any meaningful reform is yet to be seen but, the mere fact that he is talking about it, can only be seen as positive.

Recently, the U.S. Chamber of Commerce, along with a number of large U.S. employers urged President Obama to restore the L visa program. They charge that the changes in the application of the law by the USCIS and the US Consulates in India have gutted a program that promoted international business and spurred U.S. job growth.  The fact that the denial rate of L visas has increased over 300% in the past few years with NO change in the legislation or regulatory scheme is alarming.  They claim that the change in the application of existing law is politically motivated and being driven by Senators Grassley and Durbin and these efforts have resulted in an increase in outsourcing of U.S. jobs and an impediment to IT job growth in the U.S.

This week, the USCIS released revised FAQ’s clarifying portions of the Jan 2010 Neufeld memo.  The original Neufeld memo declared that staffing cos. engaging in staff augmentation were not employers as that term was going to be interpreted by the USCIS. After a significant amount of lobbying by various business and legal groups, most notably TechServe Alliance, the USCIS has now modified their position.  Specifically, question thirteen notes that there are situations in the consulting / staffing world that would constitute a valid employee – employer relationship.  USCIS noted that adjudicators would consider the following factors in reviewing the relationship: “whether the petitioner pays the beneficiary’s salary, whether the petitioner will determine the beneficiary’s location and relocation assignments . . . , and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling.”  Question five which specifically states that end client letters are not required is not a change but, has been a part of the policy since August of 2011. We are very pleased to see this guidance from USCIS. We are hopeful that the adjudicators at the Service Centers and Consular officials take note of this guidance and follow it.

A recent report issued by the Institute for the Study of Labor in Bonn, Germany compared H-1b employees to native workers in regards to age, salary, and education level.  This study, called H-1bs: How do they stack up to US Born Workers, noted that the H-1b visa system is often criticized for harming opportunities for native workers and allowing employers to take advantage of H-1b employees.  However, the study found that H-1b workers on average are younger and more highly educated than U.S. born workers. In addition, they earn a salary that is comparable, if not higher, than the amount earned by native workers.  To reach these conclusions, the authors obtained data on individuals from USCIS for 2000 to 2010 through a Freedom of Information Act request.  This data was compared to the information provided about U.S. born workers in the American Community Survey: 2009.  The report confirms that H-1b workers come to the United States with an advanced level of education, earn high incomes, and participate meaningfully in the U.S. workforce.

Don’t believe the rhetoric that is coming from USCIS officers and the corn fields of Iowa claiming that immigration officials are being too lenient and being pressured into issuing unwarranted approvals. The truth lies in the numbers. A recent report from the NFAP,  provides facts (those are statements that are true and not inventions of one’s mind) about the denial and RFE rates experienced by employers trying to petiton for H-1b, L, and O workers over the past few years.  While the White House advocates for an immigration policy that attracts and retains highly skilled professionals and entrepreneurs and the DHS issues press releases touting its efforts consistent with that policy, the rank and file USCIS officers are beating to a different drummer.  The facts don’t lie, even if they don’t play well in the heartland.

Several HLG attorneys attended the DHS Ombudsman open forum on L-1b petitions.  At some point in the future, an official summary will be posted on the Ombudsman web-site. Until then, below are some items of interest. The DHS acknowledged that there has been a tremendous narrowing of the interpretation of the definition of “specialized knowledge” without any statutory or regulatory changes. The denial rates for L-1b petitions have now risen to 27% whereas, it had never exceeded 7%  prior to 2008. The rate of denials is much higher for IT petitions. The RFE rate has now reached over 66%. The DHS also acknowledged inconsistent treatment of petitions between the 2 service centers with the California Service Center having higher denial rates.  It was speculated that the standard being used by the service centers stems from a 2008 AAO case, GST which many scholarly experts have posited is possibly the most legally defective decision to ever be issued by an administrative law judge. The essential point of the GST opinion was that “if everyone is specialized, no one is specialized” Although, the merits of this policy remain without legal support, the reality is that this is the current policy being applied by the USCIS.   The Ombudsman office acknowledged that new training materials were provided to the USCIS in Oct of 2011 however, to date, the USCIS has refused to release those materials. The Ombudsman office re-affirmed that new L-1b guidance was being developed by USCIS headquarters however, no timetable was provided for the release of such guidance. Overall, it was an excellent session and it was heartening to have a DHS official listen and accept input from stakeholders. We applaud the efforts of the Ombudsman’s office and look forward to closer scrutiny of the USCIS service centers treatment of  L-1b petitions.

Earlier this week, Senator Schumer (D NY) attached a bill that would allow up to 10,000 E3 visas for nationals of Ireland under the same rules currently utilized by the Australian E3 program. The measure has been hotlined in the Senate which typically means it will move faster and has a greater likelihood of passage. Of importance to everyone outside of the emerald isles is that this measure is attached to S1983 which is the Senate version of  HR3012 which would eliminate the per country immigrant visa limits and would have a huge impact on nationals of India and China.  HR3012 passed the House overwhelmingly by a vote of 389-15 in a show of bi-partisanship rarely seen in this Congress but, when the bill arrived in the Senate, one man,  Senator Grassley put a stop to it. It is not know whether Senator Grassley will continue to try and stop this bill in its current form, and if so, whether there are enough votes in the Senate to overcome his opposition.

As part of President Obama’s public claims to foster legal immigration and encourage entrepreneurship, the DHS announced several planned reforms to achieve these goals without the need for  legislative action. We applaud the goals of the administration and these planned reforms and just hope that the culture of no which so permeates the agency at the service center levels are not able to quickly thwart the Preseident’s plans in much the same way that Senator Grassley and his cohorts in Congress would most assuredly stop these reform measures if Congressional action were required.