We knew it couldn't last and we are sad to report that the US Consulates in Canada have now joined their brethren from Posts in India and Manila in determining that it is their duty as red-blooded Americans to re-adjudicate every issue in an H-1b petition before issuing a visa. The US Consulates are re-adjudicating issues relating to itinerary requirements, Labor Condition Applications, short-term placement rules, employer-employee relationship, the rule of control and supervision created by the Neufeld policy memo, and the validity of employment contracts to name their favorite topics. Attached is the latest emailbeing sent by the US Consulate in Ottawa to end clients (or at least who it perceives to be end clients). The practice of re-adjudication of petitions previously approved by the USCIS is not supported by the regulations but, is being done under the guise of fraud prevention. Errors in interpretation and/or mis-application of DOL and USCIS regulations and case precedent go unchallenged since US Consulates enjoy the protection provided by the doctrine of non-reviewability. It is time for Congress to re-examine this doctrine and allow employers and foreign nationals who are wrongfully denied a visa to go into a Federal Court and obtain redress. Only with the threat of an impartial judge reviewing their actions will the US Consulates stop the witch hunts and follow well-established law and procedure.
In what has become a holiday tradition, a government agency has announced a fee increase. This time the DOS has published a new schedule for fees applicable to visa issued at Consular posts. If only we could be assured that the Post would apply the law, paying increased fees would not be so bad but, alas, that is but wishful thinking on our part and as likely to happen as Santa coming down a chimney delivering presents !
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.
If the political parties can't agree on a budget and the government shuts down on Fri. as threatened, the implications to various agencies involved in immigration processing are significant. Although, much is not yet announced it is likely that there would be little impact to the USCIS as they are primarily funded by fees whereas the DOL and the US Consulates would be essentially closed. Only "essential functions" woudl be available during a shutdown. It is conjecture but, believed that no DOL function relating to immigration processing would be deemed essential so no LCA's, no PERM processing, etc. It is also likely that all visa appointments at US Consulates would be cancelled. We will keep you updated with official information as it becomes available.