The USCIS has pleaded to Congress for additional funding due to the implications of COVID-19. Guess they figure everyone else's hand is out, why not theirs. They have stated that if they do not receive the additional funding, they will add a 10% service charge to applications. Maybe they should consider restoring the premium processing service which generates $1440.00 per petition ? Or maybe they should make their processing of cases more efficient and cost-effective eg. they can stop requesting the annual report for publicly traded cos.; having to receive, scan in and store what is often a 1000+ page document is unnecessary. Or maybe they should stop issuing RFE's at a rate that is 4x greater than under any other administration. Or maybe they should stop issuing 3 mo. H-1b approval notices when the law supports the issuance of a 3 yr. approval thus eliminating literally tens of thousands of unnecessary filings ? Or maybe they should stop denying H-1b petitions where the law does not support such a decision; as they lose case after case in Federal Court, surely the money they are paying out to the winning plaintiffs and the costs to defend these arbitrary and capricious decisions add up. But, hey those are just my thoughts; I'm no budget expert. Asking Congress for a handout or charging your customer that you are failing to serve is another route to take.
As if they needed to make it any more clear that USCIS is taking a more combative stance against any benefits sought, USCIS has updated its mission statement. The old mission statement was: "USCIS secures America's promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system." The new Mission statement reads: "U.S. Citizenship and Immigration Services administers the nation's lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values." They don’t consider you a customer even though providing Services is in their title! They don’t believe the United States is a country of immigrants anymore, one of our founding principles. I would be prepared for the culture of NO to intensify and that every little thing will be a battle with them.
The USCIS recently issued a revised version of the Form I-9, Employment Eligibility Verification Form. This form must be used beginning on September 18, 2017. All existing storage and retention rules for Form I-9 must continue to be followed. As you know, employers use the Form I-9 to verify the identity and employment authorization of newly hired employees. In this latest revision, the USCIS modified the List of Acceptable Documents to include adding to List C the Consular Report of Birth Abroad (Form FS-240), combined all certifications of report of birth issued by the U.S. Department of State (Forms, FS-545, DS-1350 and FS-240) into List C, and renumbered all List C documents except the Social Security Card. Additionally, the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to its new name of Immigrant and Employee Rights Section and removed "the end of" from the phrase "the first day or employment." Please contact your HLG attorney if you have any questions about the new form, how to do an internal audit, E-Verify or with any other immigration or employment verification questions.
Numerous EB-5 legislation has been introduced with the intention of curbing some of the EB-5 program’s issues and problems. S.1501, the American Job Creation and Investment Promotion Reform Act of 2015, introduced by Sen. Grassley and Sen. Leahy, included a laundry list of EB-5 “integrity” measures. Sen. Charles Grassley and Sen. Dianne Feinstein, have proposed legislation to eliminate the EB-5 program. In order to attempt to under the EB-5 landscape as it stands in the current political climate, we must understand the players: Stephen Miller, Senior Advisor to the President for Policy, is a Former Senator Jeff Sessions alum who is well known for his opposition to legal immigration. Gene Hamilton, Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor, is also a Sessions alum. Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS), most recently assisted Sen. Grassley to write the H-1B and L-1 Visa Reform Act of 2015, a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits as well as S.1501. Kathy Nueble Kovarik, Chief of the USCIS Office of Policy and Strategy, is also a Grassley alum. Julie Kirchner is the USCIS Ombudsman. Ms. Kirchner served as Executive Director of FAIR, an organization actively opposed to the EB-5 program. The USCIS Ombudsman is responsible for assisting “individuals and employers in resolving problems with” USCIS and due to limits recently placed by way of EB-5 protocols, is the only way for EB-5 stakeholders to escalate issues for EB-5 cases. Ms. Kirchner, in her Ombudsman’s 2017 Report to Congress, acknowledged that lack of anti-fraud and national security protections, and failure to agree on a permanent or multi-year reauthorization of the Regional Center [...]
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.
Once again, the USCIS is publicly pretending to be the friend of entrepreneurs, investors and specially skilled foreign workers while the culture of NO remains deeply ingrained at the Service Centers and at the US Consulates. In announcing the "Entrepreneurs in Residence" program, Director Mayorkas, has once again put forth the right message. Unfortunately, his own agency is not on the same page, honestly, they are not even in the same library. It is time for the Director to stop creating new initiatives and clean-up his own house.
Kudos to Senator Grassley, his puppets at USCIS and other like-minded policy makers that have consistently created or applied policies that restrict and burden the use of the H-1b visa. Oh how quickly our brilliant politicians and policymakers forget that Intel, Google, Yahoo, and eBay were all founded by immigrants in an era with LESS restrictions on the H-1b visa and LESS restrictions on the L-1b visa and LESS of a wait for a green card. USA Today reports the story of SnapDeal a high tech company whose founder was previously in the US on an H-1b visa but decided to start his new company in India instead of the US due to H-1b visa restrictions. The company has grown to a size of over 400 employees. But, hey we don't need those jobs here in the US. It's time for Washington DC to wake up and recognize that there are economic consequences to immigration policy and the US economy is being negatively impacted by the current culture of NO !
Another Federal Court, in a decision released this week, has in essence, told the USCIS to follow the law. In the instant case, the foreign national had timely filed an H-1 extension and while the extension was pending, was nonetheless, arrested, detained, and placed in removal proceedings. Although, the USCIS may have had a legitimate basis for attempting to detain the foreign national, it was the blatant disregard of Federal regulations that concerned the Federal Court. It is contended by this author that the USCIS could've made the arrest on legitimate grounds if the prevalent attitude at the USCIS was not so inclined to ignore the law whenever it chooses. The Court in its decsision made the following statement: Based on the text of the regulation, aliens making a good faith effort to comply with immigration law could not reasonably be expected to anticipate the position advanced by the government, i.e., that despite being admitted under a work-based visa, and despite an express government authorization to continue that work while a timely filed extension application is pending, they remain subject to arrest, detention, and removal at any time. Given its plain meaning, the regulation gives rise to a reasonable expectation that affected aliens “are authorized to continue employment with the same employer” subject to the same conditions and limitations that applied during their previously authorized period of stay. It is hoped, that as more foreign nationals and more U.S. corporations assert their rights and demand that the USCIS follow the law, that USCIS policy makers and politicans who control the USCIS much as Edward Bergen controlled Charlie McCarthy , will stop trying to subvert existing statutes, regulations, and years of Court decisions. A return to an Agency that follows the regulations would be a welcomed development.
The USCIS has released the number of cap cases filed through April 7, 2011 and as expected, the number of new cap filings does not come close to reaching the quota . Specifically, 4,500 cap cases were filed toward the Master's quota and 5,900 toward the regular quota. These numbers represent drops of 57% and 21% respectively. This drop is likely attributable to multiple factors including: FY2011 cap only being reached in Jan so fewer filings have been stockpiled, the disruption in the NPTE exam being given to physical therapists educated in India or the Philippines, continued weak hiring in various sectors due to economic factors and the USCIS Neufeld policy that encourages projects being performed at off-shore development centers rather than in the U.S. On the right hand side of this page, you will see "really cool charts" where we will provide updates of the number of cap cases being filed. When the caps are reached, the charts "explode like a volcano" or so I have been promised
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.