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United States Labor Immigration Law News and Analysis

EB-1 Articles

The Immigration Innovation Act of 2013 Proposes Substantial Reforms to Employment-based Visas

It is only Tuesday and this week has already been full of immigration proposals.   After yesterday’s announcement for a blueprint for a comprehensive immigration reform, today a group of Senators has released an actual draft bill which picks up where yesterday’s proposal left off with respect to employment-based immigration.      Senators Orrin Hatch of Utah, Amy Klobuchar of Minnesota, Marco Rubio of Florida and Chris Coons of Delaware have introduced the Immigration Innovation (I2, or I Squared) Act of 2013 which seeks to increase the H-1B quota, enhance the portability of existing H-1Bs, increase the number of employment-based green cards and allow U.S. students (especially STEM) to obtain green cards faster.   See the full text of the proposed bill.

Employment-based Nonimmigrant H-1B Visas

The Immigration Innovation Act of 2013 seeks to increase the H-1B cap from 65,000 to 115,000 and establish a dynamic “H-1B escalator” which would increase the cap based on demand during each H-1B filing season, with a maximum of 300,000.   The bill also removes the cap (to unlimited number) from US advanced degree holders (currently at 20,000 per year).   Dependent spouses to H-1B visa holders will be permitted to work and increased portability rules will make it easier for H-1B workers to switch employers (creating grace periods after termination, etc.).

Employment-based Green Cards

The bill would enable the recapture of green card numbers that were approved by Congress but were not used in the past.   Certain categories of applicants would be exempt from the green card numbers:  dependents of employment-based green cards; U.S. STEM advanced degree holders; persons with extraordinary ability and outstanding professors and researchers (under the EB-1 category).   The bill would also provide for the roll-over of unused employment-based immigrant visa numbers to following fiscal year so that green cards numbers are not lost.   Also, the proposal would eliminate the annual per-country limits for employment-based visa petitioners and also adjusts the per-country caps for family-based visas.

Additional Fees to be Used for U.S. Training Programs

The bill would raise the fees for H-1B and I-140 petitions and the increased fees would be used to support grant programs to the states to promote STEM education and worker retraining.

Conclusion

It should be noted specifically that this is simply a proposed bill, and not a law.   This bill, in its current shape, is likely to undergo changes, some of which dramatic, even if it ultimately becomes a law.   Since there are a number of immigration proposals circulating at this time in Congress, it is possible that this bill may be folded into a more comprehensive immigration package.

We will certainly follow developments very closely and provide updates.   We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.

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USCIS Ombudsman Recommends Changes to EB-1 EA Adjudication Standards

A few days ago, on December 29, 2011, the USCIS Ombudsman has issued a report and set of recommendations urging USCIS to take proactive steps to ensure clear, consistent and predictable standards are applied to immigrant visa applications under the first employment-based preference category (EB-1) for aliens with extraordinary ability (EA).

Background on the Current EB-1 EA Adjudication Standards

The Ombudsman report and its recommendations were triggered by the lack of clear standards and guidance after the December 22, 2010, USCIS policy memorandum which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to certain employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals.   The policy guidance provides a two-part test to determine eligibility: (1) an evaluation of whether the petitioner provided the requisite evidence; and (2) a final merits determination.   However, as a result of the December 22, 2010 memo, our office (and other in the community) has seen inconsistent adjudications, errors in applying the new standards and, simply, confusion.

Among the main issues with the current EB-1 adjudication approach are (1) the current standards for I-140 adjudication allow for too much subjectivity — in other words, adjudicators can make decisions which are difficult, if not impossible, to challenge, if applied incorrectly; (2) the December 22, 2010 memorandum’s two-part review is not required by the Kazarian decision, and even if it was, the standard has not resulted in clearer standard of review; (3) immigration officers who examine I-140 petitions in the EB-1 category lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability”; and (4) USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination under the two-part test mandated by the December 22, 2010 memo.

The Ombudsman’s Recommendations to USCIS

The Ombudsman report makes several recommendations to USCIS seeking to address the concerns raised after the December 22, 2010 memo.

1.  Conduct Formal Rulemaking to Clarify the Regulatory Standard.

Essentially, the Ombudsman’s office urges USCIS to engage in a process whereby USCIS would propose a rule, incorporating the EB-1 regulatory standard, and then subject that rule to public review and comment, as required by the Administrative Procedure Act.

The use of the APA rulemaking process would assist both adjudicators and others in the immigration legal community to clarify the adjudicatory standard for EB-1s.  The ability to submit written comments to the proposed rule is also supplemented by a requirement that USCIS issues a written statement explaining how it has responded to the public comments.  The APA rulemaking process would provide substantive standards for adjudicators to use in adjudications, and for individuals and employers to use in preparing petitions.  If public comment were negative, USCIS could incorporate reasonable suggestions into a revised rule to accommodate legitimate stakeholder concerns.

2.   In the Interim, Provide Public Guidance on the Application of  a Final Merits Determination

While USCIS goes through the formal rulemaking process, outlined above, the Ombudsman’s office recommends that USCIS provide interim clear objective standard for evaluating the totality of the supporting evidence submitted as part of any EB-1 application.     According to the recommendation, effective guidance would explain that an adjudication may include a limited subjective analysis, but cannot involve discretion, and how to apply subjectivity without leading to arbitrary or inconsistent adjudications. Clear guidance would enhance the quality and consistency of adjudications, and lead to fairer, more predictable outcomes.

3.  In the Interim, Train and Provide Additional Clear and Specific Guidance to Adjudicators on Proper Preponderance of Evidence Standard Application in EB-1 Cases

Additionally, while USCIS goes through the rulemaking process recommended in #1 above, the Ombudsman’s office recommends that USCIS provide adjudicators with additional training and materials clarifying what constitutes proof of: extraordinary ability; outstanding professor/researcher status; and exceptional ability, by a preponderance of the evidence.

Conclusion

We applaud the USCIS Ombudsman’s recommendations on the EB-1 standards.   Our office has witnessed first-hand lack of cohesion by USCIS when dealing with EB-1 filings and we have, on at least some occasions, counseled very cautious approach when applying for EB-1 cases, mainly due to the lack of predictability of the review standards.    The EB-1 extraordinary ability category is intended to attract the brightest talents from a number of fields; instead, the current lack of clear standards has the effect of deterring some very good applications.

While the report contains recommendations, we hope that USCIS would consider it and take steps to implementing it.  We will continue to monitor this topic and provide relevant updates.   In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.

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EB-1 Processing Statistics

USCIS has provided some interesting statistics relating to the processing of Form I-140 petitions for classification of foreign nationals under the employment-based first (EB-1) category.    The statistics reflect the number of receipts, approvals, denials and RFEs issued during a fiscal year and are helpful in understanding general EB-1 adjudication trends.

The EB-1 Statistics

Texas Service Center is More Popular.  The Texas Service Center is clearly the more popular service center, judging by the number of filings.   It received between two and three times the amount of EB-1 applications filed with the Nebraska Service Center.  For example, the Texas Service Center received 9,981 EB-1 I-140 cases in FY2011 (until 19, 2011), while Nebraska received 3,811 for the same period.

Number of EB-1 Filings Remains Steady.  Because the FY2011 data is for the year until July 19, 2011 (or based on approximately 10 months), the overall number of filings in 2010 should end up being similar to the total number of EB-1 filings in 2011, when the reported EB-1 FY2011 numbers are calculated on yearly basis.

Comparison of the Rate of RFEs and Denials.   It is also interesting to note that in 2010 Nebraska had a significantly higher rate of RFEs and denials across all EB-1 categories compared to Texas.  For example, in 2010, Nebraska issued RFEs in 67% of the cases (Texas was at 26%) and denials in 36% (Texas was at 18%).   However, so far in 2011, Nebraska is generally at par with Texas.  So far in 2011, Nebraska issued RFE in 38% (Texas is at 29%) and denies 16% (Texas is at 13%).     It should be noted, however, that some of these numbers carry over from one fiscal year to another – for example, an RFE may be reflected in one year’s numbers, while a denial would be reflected during next year’s number simply because the denial was issued after the new fiscal year has started.   As a result, a scientifically-accurate comparison of percentages across fiscal years is not possible based on this data.

Conclusion

While we recognize that the EB-1 adjudication statistics reported by USCIS do not permit accurate calculation of percentage chances of RFE, denials and approvals, the numbers are very helpful nonetheless in understanding trends at the Texas and Nebraska Service Centers.    Based on these numbers, the Nebraska Service Center’s rate of favorable adjudications is inching closer to the Texas Service Center.   Also, we note that the rate of filings has remained steady over the past two years.

Our office handles a number of EB-1 filings in all subcategories and we are happy to review and assist with EB-1 cases.   Please feel free to contact us for review and analysis of EB-1 cases.

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USCIS Issues “Clarifications” for Entrepreneur Immigrants: Self-sponsored H-1B and EB-2 NIW May be Possible, EB-5 Streamlined

USCIS Director Alejandro Mayorkas just announced a number of initiatives intended to boost the ability of immigrant entrepreneurs to obtain immigrant benefits for themselves, as part of the Obama administration’s goal to boost hiring and jobs. Director Mayorkas has announced a number of initiatives and “clarifications” of existing temporary and permanent work visas which should make it easier for entrepreneurs to remain in the U.S.

The Problem Immigrant Entrepreneurs Face

A number of foreign national entrepreneurs face significant difficulties in obtaining permission to work and engage in the kind of entrepreneurship and job creation the economy needs.   Currently, the H-1B temporary work visa program is off-limits to many individual entrepreneurs, as a result of the January 8, 2010 Neufeld Memorandum which required each H-1B work visa petition to show that the petitioning employer has the right to control, including to hire and fire, the foreign national employee.   Most often entrepreneurs are the owners or have a controlling interest over a company, and the right to control in many cases cannot be shown.   Effectively, the Neufeld Memorandum prohibited H-1B self-sponsorship for foreign entrepreneurs.   For background, please see our prior articles relating to the Neufeld Memorandum.

Similarly, the permanent work visa program (or green card) limits the ability of foreign entrepreneurs to obtain benefits due to the lack of employer-employee relationship in many cases.    Other than the EB-5 category (see more below), in most cases, immigrant entrepreneurs must have a U.S. sponsor employer which can provide the employer-employee relationship, in a way discussed above.    Due to the fact that the EB-5 green card category requires an investment of $1 million, among other requirements, few foreign entrepreneurs qualify for it, at least at the initial stage of their endeavors.

Finally, the EB-5 category, as discussed above, has qualifying requirements and processing procedures which are not suitable for many small businesses.   The EB-5 category, in addition to having relatively high capital requirements, takes a long time.   Entrepreneurs who have the capital and decide to apply must go through several months of paperwork to find out whether their permanent residency visa is approved.   This uncertainty, and the possible inability to engage in employment in the U.S. during this time, make the EB-5 option difficult for many.

USCIS Clarifications:  H-1B Self-Sponsorship Possible With Specific Corporate Governance Structure

As a result of increased criticism and hoping to spur job creation and growth, USCIS has clarified the rules with respect to H-1B temporary work visas for the benefit of foreign entrepreneurs.   An H-1B petition would still have to show the employer-employee relationship between the sponsor entity and the entrepreneur; but in cases where the foreign entrepreneur is also an owner, USCIS has clarified that this can be done by structuring the company’s corporate governance in a way to allow a board (or similar entity) to exercise control over the entrepreneur (and employee).    For example, if there is a board of directors (or a committee of the board) which has the right to control (including to hire and fire) the entrepreneur-employee, then USCIS, under the new clarification, should deem that the right to control has been established.

USCIS has provided a “Frequently Asked Questions” document which seeks to provide additional information and answers to common questions.    It makes clear, however, that the Neufeld Memorandum remains unaffected.

USCIS Clarifications:  EB-2 NIW Self-Sponsorship Possible When Job Creation/Growth Can be Shown

Additionally, with respect to self-sponsored EB-2 National Interest Waiver (NIW) permanent visa category, the government has clarified that a foreign entrepreneur may qualify for a self-sponsored EB-2 NIW category if he/she can show that the business enterprise would benefit the national interest of the United States.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

Prior to the current clarification, the EB-2 NIW category was used most often by professionals whose work can be shown to benefit the U.S. by providing a specific benefit or service.    Now, USCIS has clarified that job creation and economic growth, either direct or indirect, could be considered to be in the U.S. national interest and could allow foreign entrepreneurs to obtain permanent residency under the EB-2 NIW category.

USCIS has published a “Frequently Asked Questions” document on its website clarifying this new approach.  USCIS has indicated that they will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies.

Changes to Streamline the EB-5 Investor Green Card Program

The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed a number of changes to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application.   USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.   Hopefully, this would provide the kind of fast processing and additional certainty about the process many foreign investor entrepreneurs need.

Premium Processing to Expand to Include EB-1 Multinational Executives and Managers

Additionally, USCIS has announced that it intends to reinstate the premium processing option for EB-1 I-140 petitions filed on behalf of multinational executives and managers.    A processing time of 15 calendar days under the premium processing option would address a frequent concern by foreign managers and executives that it may simply take too long for them to be able to join a business operation in the U.S.  The USCIS announcement is unclear on the effective date of this change, but we will monitor the availability of this option and provide an update.

Conclusion

We welcome USCIS Director Mayorkas’s announcements and welcome the “clarifications” and changes he has just announced.   At the same time, we realize that these “clarifications” must be properly communicated to the field officers and adjudicators so that when a properly prepared self-sponsorship H-1B or EB-2 NIW petition is filed, it is given the due benefit under the new guidance.   Our office will be monitoring new developments on this topic and we would be providing relevant updates on our website and via our weekly newsletter.  In the meantime, please do not hesitate to consult us if we can be of any assistance.

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Texas Service Center EB-1A RFEs

Our office is not alone in noticing the increased amount of RFEs issued in connection with EB-1A, Alien with Extraordinary Ability, filings.  We have noticed not only that some RFEs are very vague in terms of language and requirements but also that cases which are clearly well-documented and supported as part of the initial filing are issued RFE or even in some cases a straight denial.

The Texas Service Center has provided some assurance that they are undergoing an RFE review process starting October 2009 whereby they will inspect a portion of the outgoing EB-1A RFES for quality.  While this may be of little comfort to EB-1A petitioners already subject to an RFE, we hope that in the future the qualify and specificity of Texas Service Center RFES would improve.

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