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Melania, Stephen Miller, and Immigrant “Haves vs. Have Nots”

dreamstime_xs_62076674-copyOn the one hand, we have a President who is married to a naturalized citizen of the United States.  To my understanding, Melania Trump was originally an O-1 nonimmigrant in the United States (a temporary visa status reserved for, in her case, a fashion model of extraordinary ability in business) who later used a comparable immigrant category to obtain lawful permanent residence.  She then, eventually, applied for naturalization and became a citizen of the United States.

Fast forward, in what can only be described as a case of chain migration (something the President has professed to being opposed to), the President’s wife then petitioned for her own parents to come to the United States as immigrants, as she has the legal right to do under the law. Fast forward one more time, Mrs. Trump’s parents do come to the United States and, after a period of time, they apply for naturalization themselves, something they also have the right to do under the law.  These naturalization applications, according to recent news reports, were granted.  I work with clients every single day under similar fact patterns.

Juxtapose this with the fact that the President, himself individually and through his minion, Stephen Miller, is actively pursuing a policy to make it harder to become a lawful permanent resident (i.e., a Green Card holder), or for some lawful permanent residents to obtain citizenship.  This is on top of all the other ridiculousness we’ve witnessed thus far over the summer, including the forced (and in many instances continued) family separations, actively opposing the continuation of Deferred Action for Childhood Arrivals (“DACA”), among other acts of stupidity and egregiousness.

How is this so?  How can a man who’s own wife (indeed even his own ex-wife too) and who’s own in-laws are immigrants to this country be so callous and cold-hearted to literally an entire class of human beings (i.e., anyone who was not born in the United States but yet wants to permanently reside in the United States)?  Can someone explain this to me?  Is the President’s family better than all the other aliens who want to become permanent residents of the United States?  Or do they simply have more means?

And what about Mr. Miller?  It seems that his family too were immigrants to the United States, arriving through Ellis Island from what is now Belarus.  It seems that Mr. Miller’s relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century.  According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket.  He peddled street corners and worked in sweatshops.  And by all news accounts, he worked hard and become very successful.  That’s a great story.

With that as backdrop, the President, through Mr. Miller, is now pushing to enact a policy that could penalize legal immigrants whose families receive a wide array of public benefits and make it more difficult for them to obtain citizenship.  At its core, the President’s proposal would penalize lawful permanent residents if they or their family members (including their U.S. citizen family members) have ever used government benefits (e.g., health care subsidies under the Affordable Care Act, some forms of Medicaid, the Children’s Health Insurance Program, food stamps and the Earned Income Tax Credit).  If I was a permanent resident, because one of my sons receives services from the county, I could actually be impacted under this law.

Up until 1996, lawful permanent residents were eligible to receive public benefits on the same terms as U.S. citizens.  In 1996, however, Congress passed a welfare reform law that barred permanent residents who resided in the United States for less than five years from participating in any means-tested public benefit programs (e.g., Temporary Assistance for Needy Families, Supplemental Security Income, Medicaid/Children’s Health Insurance Program, and food stamps).  The 1996 law labeled newly arriving immigrants who might not be able to provide for themselves as “public charges,” making them inadmissible unless they could demonstrate that they were not subject to that provision of the law.

The law still allows for the removal of lawful permanent residents who, within five years of their arrival to the United States, become public charges.  That said, administrations prior to the current one have limited the public charge definition in this context to immigrants who use cash welfare programs or long-term institutional care funded by the government.  Consequently, very few people have been removed from the United States.  All this could change, however, if Mr. Miller gets his way.  How so?

The law would redefine the terms “public charge” and “means-tested public benefits” to include a much wider variety of federal programs. Second, the government could remove legal permanent residents for using benefits. Under the President’s proposed policy, lawful permanent residents could be removed for using a wide variety of public benefits, potentially including food and nutrition assistance, federally subsidized health insurance through Medicaid or the Affordable Care Act, and even education benefits.  Third, although the law currently allows immigration officials to refuse to admit prospective immigrants to the United States who could become public charges, the new policy, as currently written, could be interpreted to make a high-school degree or better a prerequisite for admission to the United States, or for someone to have a certain amount of assets. (This would obviously not impact the President’s in-laws, but could severely impact low-income or less well-educated immigrants from coming to be with their families).  And finally, although also on the books now, the new policy would instruct federal agencies to request reimbursement for benefits used by legal immigrants. (This rarely happens now.)

So, where does that leave us?  The haves and have nots?  It sure sounds like it.  It sure sounds like the President and Mr. Miller are attempting to portray legal immigrants as a drain on our system, somehow taking advantage of people like you and me.  This is simply not the case.   According to the CATO Institute, “[o]verall, immigrants are less likely to consume welfare benefits and, when they do, they generally consume a lower dollar value of benefits than native-born Americans.”

Mr. Miller’s family is an example of how immigrants can come to the United States, work hard, and become successful.  But not everyone’s experience in America will be perfect, and sometimes individuals need to lean on our government for some help.  No one should be forced to make a decision between ensuring their legal status in the United States is preserved against making sure their family is healthy and can eat.  No one should ever have to make that decision.

“Should I become a U.S. Citizen?” The Case for Naturalization and Trump’s Executive Order

imm_3I received a call the other day from a friend of mine in Boston who said he wanted my help in applying for citizenship. He’s been a permanent resident (i.e., Green Card holder) for many, many years, and I know for a fact that he’s an upstanding individual (and the Commonwealth of Massachusetts knows that too since he’s a restaurant owner and maintains a liquor license). I asked him why he now wanted to become a U.S. citizen? As you can imagine, he expressed concerns about just being a permanent resident under President Trump. This individual is Irish to the core and he should have nothing to worry about. His concerns, however, are well-founded.

Not everyone who is a permanent resident becomes a U.S. citizen (i.e., naturalizes), nor is there any legal requirement that one must naturalize. However, permanent residents who naturalize gain important benefits, not the least of which (these days) is security from deportation (in most cases) and the ability to travel with a U.S. passport.

Under the law, to qualify for U.S. citizenship, permanent residents must (a) be at least 18 years of age, (b) reside continuously in the United States for five years (or three years if they are spouses of U.S. citizens), (c) be of good moral character, (d) demonstrate the ability to read, write, speak, and understand English (unless they are exempt from this requirement), (e) pass an examination on U.S. government and history (unless they are exempt from this requirement), and (f) be willing and able to take the naturalization Oath of Allegiance.

Seems simple, right? Sometimes it is. Other times, however, issues arise as to whether someone is a person of good moral character (because of something he or she might have done in his or her past), continuous residency in the United States, to name just a couple.

Is it worth it? I don’t often counsel clients to become a U.S. citizen. I think that’s a very personal decision, and there are many factors that go into that decision. However, these days, I personally think there’s much more at stake for permanent residents, whether they’re from one of the seven predominantly Muslim countries designated in President’s Trump’s Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” or otherwise.
Few people expect to be arrested for a crime. But the risks for permanent residents who are arrested for a crime, even a seemingly minor one (like a misdemeanor under state law) are much, much higher. Permanent residence can be revoked and the individual can be deported. While there are many benefits associated with being a permanent resident, “permanent” does not necessarily mean “permanent.”

And if not for you, what about your children? We all know that kids make mistakes, and many times they’re really stupid ones. Immigrant kids are especially at risk if they make stupid mistakes. For example, with few exceptions, most convictions related to the use of illegal drugs can result in deportation of a permanent resident. So can a conviction related associated with sexual conduct by a young adult with a person who is a minor. Indeed, many immigrants who have lived in the United States with their families as permanent residents since they were very young children have been deported after being convicted of crimes they committed as youth or young adults. Becoming a U.S. citizen can protect you and your children from deportation.

We are living in an unprecedented moment in history, and it feels like the rules of engagement in the world of immigration are changing by the day. I would not normally counsel clients (or anyone for that matter) to become a U.S. citizen. However, in these uncertain times, I think it’s very much worth looking into.

Tags: President Trump, Executive Order, Refugees, Muslims, Deportation, Removal, Citizenship, Naturalization.

Election Post Mortum – At Risk Population of Immigrants

??????????????????????????????????????????????????????????????????????????????????????????????I think I went to bed around 10:30 PM on election night.  Pretty early for sure.  But once the analysis was coming in on voting trends in Florida and Michigan, I knew the writing was on the wall.

So what does a Trump presidency mean in the world of immigration?  Potentially a lot.  I am very fortunate to have a diverse law practice, and within our immigration practice, we serve both corporate clients (e.g., from start-ups to mature businesses) and individuals and families.  A fair amount of the individuals that we serve are what I consider to be at-risk; some are here in the United States lawfully, and others not.  Many do not want to go home.  These are amazing people, with amazing and often horrifying stories to tell of why they came to the United States, and how.  Unfortunately, because of what we’re seeing in the aftermath of the election, many of them are now scared, really scared (including some of our corporate clients)!

On the one hand, we have business clients who are concerned about their foreign national employees, whether they’re going to be able to remain here, whether their working status will be able to be extended, whether they can safely take business trips outside the United States and return unimpeded.  All sorts of questions.  I try to assure these folks that nothing, yet anyway, has changed, as far as their employees are concerned.

And then we have what I refer to as our at risk clients, some here lawfully and some not, many who came to the United States leaving terrible and dangerous situations back in their home countries, and who are legitimately fearful to return.  Many of these individuals are unaccompanied minors, kids who have been abandoned by their families back home and who made perilous journeys across our Southern border, seeking a better life.  I am very concerned about this population.

This is the time when scammers, and so-called notarios, are likely to come out of the woodwork.  We’re advising clients not to fall for scammers or notarios who will prey on this at risk population, people who are often confused and are no doubt fearful about the election results.

We’re receiving daily calls from clients and potential clients who are afraid of what the next four years may mean to them and their families, their businesses, and their communities.  Our job now, more than ever, is to work with them, help them realize the American dream, and help them overcome any obstacles that may be created by our new President and our immigration laws and regulations.

When we receive these calls, our first response is “don’t panic”!  With perhaps one or two exceptions, we do not know for sure exactly what will happen when President-elect Trump takes office in January.  We’re advising our clients not to make any hasty or rash decisions, and instead take the time necessary to review their particular situation, get the facts, review the law, and know their rights.

One of the things that the President-elect said he would do on “Day 1” is rescind many of the executive actions put into place under the Obama Administration.  The biggest one, in the immigration arena, is no doubt President Obama’s 2012 initiative known as Deferred Action for Childhood Arrivals (“DACA”).  That program allows some aliens who are unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization.

As of June 30, 2016, U.S. Citizenship and Immigration Services (“USCIS”) had approved close to 750,000 DACA applications (since 2012).  We do not know if, how or when DACA might end.  President-elect Trump could take action on DACA immediately or soon after his inauguration, weeks or months later, or perhaps not at all if he softens or changes his position (as he has so often done of late).

Finally, one of the biggest things that we are highly recommending to our clients is, if they are eligible, to apply for citizenship in the United States.  Of course, everyone’s situation is not the same, but if someone meets the basic eligibility requirements for becoming a U.S. citizen, and they have no adverse factors in their background that would make them ineligible for citizenship (or worse, potentially removable from the United States), we’re advising them to take a hard look at applying for U.S. citizenship.  Citizens of the United States have so many more protected under the law than someone who is not.

These are interesting times we live in.  And its only just begun.

H-1B Filing Season Comes and Goes: Why the Cap Should be Raised

????????????????????????????????????????????????????????????????????????????????????????????????????So, a little more than a year has passed since I wrote about the 2015 – 2016 H-1B filing season being upon us, and here we are again.  April 1 has now come and gone, a new H-1B filing season was upon us, because on April 7, 2015, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had reached the congressionally mandated H-1B cap for Fiscal Year 2016. So the H-1B filing season, after only seven (7) days, is over for employers who are not eligible to file cap-exempt petitions. What am I talking about?

A little reminder about the H-1B nonimmigrant worker program.  An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.”  A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States.  Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

Since 1990 (which was the start of the H-1B program), Congress has placed a statutory limit on the number of H-1B nonimmigrant visas made available during each government fiscal year (unless an exemption applies to a petitioning employer). The current statutory cap is 65,000 visas per year, with an additional 20,000 visas for foreign national professionals who have graduated with a Masters or higher degree from a United States college or university.  In recent years, the statutory limit has been reached within days of April 1, which is the first day that H-1B visas are made available for the fiscal year that starts on October 1.

So what does U.S. Citizenship and Immigration Services (“USCIS”) do when there are more employers filing petitions than there are H-1B visas available?  They employ a lottery to choose whose petition will be adjudicated and whose will be rejected.  Imagine telling your client, after they’ve paid your fees to get their case prepared and filed, the USCIS may not select their case to be adjudicated!

That’s right, due to incredibly high demand, USCIS uses a random selection process for all cap-subject petitions received within the first five business days available for filing H-1B petitions in a given fiscal year. (It’s a little more complicated than that with the inclusion of the U.S. Master’s or higher degree exemption limit being factored into the mix, but the point remains the same.)

Which of course begs the question whether the cap makes sense.  According to USCIS, in the last ten years, six times the cap has been reached in less than ninety days.[1] In four of those years, the cap was reached in six days or less.  This year it was seven (7) days.

I’ve heard (probably) all of the arguments as to why we need the cap (e.g., to protect U.S. workers, wages, etc.).  In my opinion, the current regulations implementing the H-1B worker program do that just fine.  The simple fact is, and the evidence and literature amply supports the proposition, that the H-1B worker program impacts our economy and employment opportunities of U.S. born workers in a very positive manner.[2]

For example, between 1990 and 2010, the increase in STEM workers in the United States under the H-1B program (i.e., those working in the science, technology, engineering or math fields) were associated with a significant increase in wages for college-educated U.S. born workers in 219 cities in the United States.[3]  In addition, H-1B-driven increases in STEM workers in a city were associated with an increase in wages of 7 to 8 percentage points paid to both STEM and non-STEM college educated U.S. workers, while non-college educated workers saw an increase of 3 to 4 percentage points.[4]

What about arguments that the H-1B worker program negatively affects employment rates?  Bologna. (I haven’t seen, let alone written, that word in 30 years!)  The simple fact is that H-1B workers complement U.S. workers, fill employment gaps in many STEM fields, and expand job opportunities for everyone.

The evidence shows that unemployment rates are low for occupations that use large numbers of H-1B visas.  For example, many STEM occupations have very low unemployment,[5] compared to, according to the Bureau of Labor Statistics, the overall national unemployment rate. This means that the demand for labor that exceeds supply.

Finally, what about those that argue that the benefits of the H-1B program are limited to those involved in technology fields?  Some even argue that H-1B visas are all taken by Silicon Valley companies.  Some even say Microsoft and Google take them all by themselves?  Wrong!  According to data published by the Brookings Institution, in the 2010 – 2011 fiscal year, there were 106 metropolitan statistical areas across the United States that had at least 250 requests for H-1B workers.[6]  And while there are admittedly a lot of H-1B workers that are filling STEM occupations, there is also a significant amount of demand for H-1B workers in healthcare, business, finance, and life science fields.[7]

There are exemptions to the H-1B cap that some employers are eligible for (e.g., institutions of higher education, a related or affiliated non-profit entity, a nonprofit research organization, or a governmental research organization), and it’s a pleasure to represent entities that have an exemption available to them.  But the simple fact is, the cap should be raised, significantly, or even eliminated.  The evidence is clear that the H-1B visa program enhances our economy in so many important ways.

 

[1] U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2005; see also U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2006 – 2014.

[2]  See, e.g., Nicole Kreisberg, “H-1B Visas: No Impact on Wages” (Great Barrington, MA: American Institute for Economic Research, 2014); Giovanni Peri, Kevin Y. Shih, Chad Sparber, and Angie Marek Zeitlin, Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession (New York, NY: Partnership for a New American Economy, 2014); Giovanni Peri, Kevin Y. Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Unemployment in U.S. Cities,” NBER Working Paper No. 20093 (Cambridge, MA: National Bureau of Economic Research, 2014).

[3] Giovanni Peri, Kevin Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Employment in U.S. Cities” (Cambridge, MA: The National Bureau of Economic Research, 2014).

[4] Id.

[5] Information Technology Industry Council, the Partnership for a New American Economy, and the U.S. Chamber of Commerce, Help Wanted: The Role of Foreign Workers in the Innovation Economy (Washington, DC: December 2012), pp. 2-3.

[6] Neil G. Ruiz, Jill H. Wilson, and Shyamali Choudhury, “The Search for Skills: Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas” (Washington, DC: The Brookings Institution, 2012), p. 1.

[7] Id.

Obama’s Executive Action : Expanding Deferred Action Initiatives to Unlawful Aliens

??????????????????????????????????????????????????????????????????????????????????????????????OK, so let’s break it down.  Clearly the centerpiece of President Obama’s administrative “fix” of what he has repeatedly described as a “broken immigration system” are his initiatives to grant “deferred action” (essentially, temporary relief from being removed or deported from the United States) to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here.  A second group of aliens unlawfully present in the United States who will benefit under the President’s actions are those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”, or “Green Card” holders).

Deferred Acton for Childhood Arrivals

So what are the specifics?  In June 2012, President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as Deferred Action for Childhood Arrivals (“DACA”), whereby aliens unlawfully present in the United States who had been brought to the United States as children and who met other criteria could receive “deferred action.”  In many cases, these individuals also received employment authorization.  Eligibility for DACA, however, expressly excluded aliens unlawfully present who were over the age of 31, or who had entered the United States on or after June 15, 2007.

On November 20, 2014, President Obama modified the DACA program by eliminating the age ceiling and making individuals who began residing in the United States before January 1, 2010 eligible.  Moreover, the President announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two.  We’re informed that those eligible under the new criteria should be able to apply within 90 days of the President’s announcement.

Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents

Hand-in-hand with the expanded provisions of DACA was the President’s announcement that his administration would also be granting “deferred action” to the parents of U.S. citizens and LPR’s.  This initiative is commonly called DAPA.  Like those eligible for DACA, some applicants for DAPA will be eligible for employment authorization too.

Specifically, aliens unlawfully present in the United States, and who have children who are either U.S. citizens or LPR’s, will also be eligible for deferred action (and employment authorization) pursuant to the President’s announcement.  To be eligible, in general, these aliens must be able to show “continuous residence” in the United States since before January 1, 2010, physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they request deferred action, (3) not being an enforcement priority under the administration’s newly announced enforcement priorities, and that they present no other factors that, in the exercise of discretion, would make the grant of deferred action inappropriate.

The Obama Administration estimates that approximately 5 million aliens unlawfully present in the United States could be directly affected by the expanded DACA and new DAPA initiatives.  However, the actual number who apply for benefits under either program may be much smaller, depending on outreach, access, cost, and numerous other factors.

So What did President Obama Actually Do?

Immigration reform has arguably become the third rail of politics.  Those on the political right will say that the President granted “amnesty” to all these aliens.  I suppose whether that’s true depends on what your definition of amnesty is.  I personally don’t believe that’s the case. Here’s what I can tell you.

A grant of deferred action is not “legalization” as that term is commonly understood in the world of immigration.  Legalization is typically a process whereby aliens who are unlawfully present in the United States acquire legal status, typically as LPR’s.  LPR’s can then typically apply for U.S. citizenship after a statutory period of time (and assuming they meet certain conditions).  That’s not at all what happened here.

Aliens granted deferred action are generally “lawfully present” in the United States under federal law.  That’s it.  They may also be eligible for certain benefits, like applying for driver’s license, but by and large, they would not be eligible for public benefits.

Being “lawfully present” in the United States is not the same as being in a “lawful status.” Aliens granted deferred action are not in a lawful status.  Thus, a grant of deferred action, in and of itself, does not result in an alien obtaining a Green Card, and as a result, such an individual cannot eventually apply for citizenship.  Indeed, aliens granted deferred action could conceivably have their status terminated by Congress in the future.

Of course, I personally hope this will not be the case, but one never knows.  The next two years may tell us a lot.  Politics is a funny thing.

Election Afterthoughts and Immigration Reform by Executive Action

imm_2I’ve taken some time to digest the 2014 midterm election results, and specifically in terms of what they mean for the prospect of comprehensive immigration reform.  At first blush, it doesn’t look great.  At second blush too.

Last week, however, the New York Times published (in my opinion) an excellent editorial, making the case why President Obama should go it alone and use his executive authority to give temporary protection to potentially millions of aliens unlawfully present in the United States.  I am well aware that this is a hotbed issue, and people have legitimately strong arguments on both sides of it.  I think the President should go for it, and it looks like he’s about to, perhaps as early as this week (and we’re informed not later than the end of the year).

To be honest, I have mixed emotions about President Obama.  But the reality is, the New York Times is absolutely correct in saying that “[s]ix fruitless years is time enough for anyone to realize that waiting for Congress to help fix immigration is delusional.”  It’s actually been longer than six years.  President George W. Bush tried for comprehensive immigration reform during his presidency, and that fell apart.  Others before him have tried and failed as well.

I’ve made this point before, but it really is worth repeating.  Our immigration system is broken.  Is it really practical to think that we’re going to deport 11 to 13 million aliens who are unlawfully present in the United States?  No.  Does it make sense that we educate foreign nationals at some of our best institutions of higher education, and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to?  No. Our immigration system is broken, and our national leaders, with the input of relevant stakeholders, should discuss, debate and implement comprehensive immigration reform.

Unfortunately, a legislative fix does not appear in the offing.  Thus, we’re now hearing (and reading) that President Obama may use his executive power to prevent the removal (commonly known as deportation) of anywhere between 3 and 5 million aliens who are unlawfully present in the United States.  The specifics are apparently still being worked out, but I’m hearing that those who are the parents of U.S. citizen children, or the spouses of U.S. citizens, will be allowed to remain in the United States, and even obtain permission to work, indefinitely.

Just so I am clear.  These individuals will not be afforded lawful permanent residence (i.e., a Green Card), nor will they be put on a path to citizenship.  Only Congress has the ability to make those types of changes (with, of course, the signature of the President).

This is not a perfect solution.  These individuals would (potentially) only be receiving a temporary reprieve from deportation.  Congress could change the law, or a future president could cancel President Obama’s program.  If that were to occur, those who participated in the program would be out in the open and thus exposed to removal.  Nevertheless, I think it’s a step in the right direction, and worth the risk for those aliens who would participate in it.

As the New York Times stated in its editorial, “[t]here will surely be intense debate when [President] Obama draws the lines that decide who might qualify for protection. Some simple questions should be his guide: Do the people he could help have strong bonds to the United States? Does deporting them serve the national interest? If it doesn’t, they should have a chance to stay.”  I agree.

US Employers Apply for Visas for Foreign Nationals in Specialty Applications : H-1B Cap Reached in 7 Days

????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????On April 7, 2014, U.S. Citizenship and Immigration Services (“USCIS”) made the following announcement:

“U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.”

O.K., I know what you’re thinking. “Here he goes again.” Sorry, I can’t help myself. This one is a no brainer.

As a reminder, for those employers who wish to hire foreign nationals as H-1B nonimmigrant workers, unless the position is exempt from the annual cap, there is an annual cap of 65,000 nonimmigrant visas that are available in each government fiscal year (plus an additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).

So, in response to the cap being reached pretty much right away, the American Immigration Lawyer’s Association (“AILA”) issued a statement through their President, Doug Stump:

“There is a serious flaw in the laws governing H-1B visas. Instead of reacting to market needs, we discard the applications of tens of thousands of potentially job-creating immigrants every year. … I’m frustrated that we are still in this position. During the recession, we saw that the demand for H-1Bs slowed. The problem is that now that the recovery has been consistent for a few years, it’s become increasingly clear that keeping the same cap we’ve had on these visas for more than ten years is absolutely the last thing we should be doing.”

He’s frustrated? Imagine having to counsel a client that after paying you your legal fees, there’s a chance that all the work that you’ve done for them will go for naught because the government has set up a random lottery system to select which H-1B petitions will be selected and which ones will be rejected. That’s right, a random lottery system. (For you litigators out there, at least when you pick a jury, you have some sort of say in the process, but this is a complete crap shoot.)

Yes, that’s what happens when you receive more than twice the amount of petitions than there are visa numbers available. Indeed USCIS announced that it received approximately 172,500 H-1B petitions during the FY2015 filing period. As a result, it then performed a computer-generated random selection process, which it completed on April 10, 2014, to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.

Mr. Stump went on in his statement:

“The H-1B process is a complicated one. The petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation. This is a process that involves a lot of hoops to jump through as it is. If a company files an H-1B petition, the least we should do is consider the request and either approve or reject it on its merits. It isn’t rational to cap these visas arbitrarily and throw out thousands of applications without even a glance.”

I could not agree more. Clients start calling me in January to start preparing for H-1B filing season (which begins on April 1 each year). The simple fact is, there’s a lot of time and expense that goes into preparing an H-1B petition. This is all well-documented, and any Google search will confirm this. So, to go through all this effort and then have USCIS simply reject your client’s petition because the computer did not select it is absolutely ridiculous.

Yes, I know, it’s the law. But it’s a bad law. Again, AILA President Stump:

“Having the talent we need to do the skilled and specialized work that so many companies require in the globally competitive marketplace is vital to our economy and national interests. We need our legislators to take this issue seriously when they move forward on immigration reform because our legal immigration system is in desperate need of an overhaul in order to bring it into the 21st century.”

The same day USCIS made its announcement that the H-1B cap had been reached, the White House issued the following statement regarding the U.S. Department of Homeland Security:

“The Department of Homeland Security (“DHS”) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness. These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency, and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.”

The issue of “trailing spouses” is an important one, and locally here in the Capital Region, we have a great resource in Tech Valley Connect, a not-for-profit that, among other things, assists foreign national trailing spouses. But what about the fact that USCIS received more than twice the amount of petitions than there were H-1B numbers within just a few days of being able to file?

We desperately need to increase the number of cap-subject visas available for H-1B nonimmigrants. And that’s not going to happen without strong leadership in the White House, and the support of Congress. The time is still now.

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