Immigration Visa Attorney Blog

The United States Citizenship and Immigration Services (USCIS) has been continually threatened with lawsuits ever since the Neufeld Memorandum on Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements was released. On June 8, 2010, precisely six months after the Neufeld Memorandum was released, the first lawsuit was filed against the USCIS, USCIS Director Alejandro Mayorkas, the Department of Homeland Security (DHS), and DHS Secretary Janet Napolitano. Several IT staffing companies and two staffing associations, namely Broadgate, Inc., Logic Planet, Inc., DVR Softek Inc., TechServ Alliance and American Staffing Association (Plaintiffs), have filed a five count complaint in U.S. District Court for the District of Columbia. In addition, the Plaintiffs have filed a motion seeking a preliminary injunction preventing the agency from enforcing the policies contained in the Neufeld H-1B Memorandum until their claims can be decided by the Court.

The basis for the lawsuit is no secret or surprise. Although IT consulting and other staffing companies have a well-established history of sponsoring and employing H-1B workers, the Neufeld H-1B Memorandum's guidance makes it very difficult, if not impossible, for such companies to be H-1B visa sponsors. In fact, there have been reports that numerous IT consulting companies have closed due to the negative impact the Neufeld H-1B Memorandum has had on their ability to sponsor H-1B professionals. The supposed motivation behind the Neufeld H-1B Memorandum was to prevent staffing companies from sponsoring H-1B workers who were, in turn, hired out to other companies that were abusing or fraudulently using the workers. Unfortunately, the USCIS went so far in its efforts to prevent a small number of staffing companies from committing fraud that its guidance wrongfully prevents virtually all staffing companies from employing H-1B workers altogether.

In the complaint, Plaintiffs are alleging the USCIS has illegally changed the law regarding whether staffing companies have the requisite control over their employees to qualify as H-1B employers. Count one of the complaint claims the USCIS violated the Administrative Procedures Act (APA) by issuing a new rule without following the proper rule-making procedures and seeks to have the memorandum vacated. Count two of the complaint claims a violation of the Regulatory Flexibility Act for failing to analyze the new rule's impact on small businesses. The third, fourth and fifth counts allege the USCIS has exceeded its statutory and regulatory authority, that the memorandum is arbitrary and capricious, and that the memorandum is not authorized by law.

Broadgate, Inc., Logic Planet, Inc., DVR Softek Inc., TechServ Alliance and American Staffing Association have finally done what many groups have been threatening to do since the Neufeld H-1B Memorandum was first issued on January 8, 2010. The immediate motion for a preliminary injunction, if granted, may give staffing and consulting companies some relief in the short term. In the long term, hopefully this challenge will not only be successful in reversing the Neufeld H-1B Memorandum's ill-conceived guidance, but also make the USCIS think twice before hastily issuing new rules without following the proper rule-making procedures.

Our firm has recently learned that, in light of the Neufeld H-1B Memorandum, certain ports of entry are more vigilantly checking the Labor Condition Applications (LCA) of H-1B visa holders. Immigration officers are reviewing the LCAs of H-1B visa holders to confirm the end client work location matches the work location indicated on the LCA. If the end client work location does not match the information on the LCA, immigration officers are finding H-1B visa holders inadmissible. While this procedure may not seem atypical or unjust, it has come to our attention that Customs and Border Protection (CBP) is using LCA inspections as a means of testing the validity of the H-1B employer-employee relationship.

CBP's newly found emphasis on verifying the validity of the employer-employee relationship is undeniably based on the controversial Neufeld H-1B Memorandum on the H-1B Employer-Employee Relationship. In addition to memorandum's conflicting guidance regarding the standard of employer control, the Neufeld H-1B Memorandum has received harsh criticism for unilaterally implementing new immigration laws without following the proper rule-making procedures. In response to these concerns, the United States Customs and Border Protection (CBP) vaguely suggested that it would "take it under advisement." However, the practices is in place at certain ports of entry indicate that the USCIS's controversial memo is finding its way to CBP's screening process as an enforcement tool at certain locations.

By way of example, an H-1B visa holder recently traveled to India and returned through the Newark International Airport in New Jersey. Upon his return from India, the foreign national was going to be working as an IT consultant at a client site in Redmond, Washington. Though an amended LCA was filed with the proper work location, the foreign national did not have a copy of the new LCA. At the inspection point, the foreign national was asked by the CBP officer to produce his current LCA. The H-1B visa holder only had a copy of his previous LCA, which indicated his work locations were Texas and Georgia. The CBP officer informed the H-1B visa holder that his LCA did not demonstrate the proper H-1B relationship with his employer. The CBP officer then stated he should withdraw his H-1B extension application, go back to India and reapply. Even though the foreign national's work location was properly documented in an amended LCA, he was deemed inadmissible for not being able to produce the new LCA at the port of entry.

Despite the controversial nature of the Neufeld H-1B Memorandum, DHS appears to be enforcing the the policies promulgated therein. Unfortunately, until the Neufeld H-1B Memorandum is retracted, H-1B visa holders are required to abide by its contents. To avoid any issues at the border, all H-1B visa holders should be advised to not only file a new LCA for any change in end client work location, but also promptly amend their H-1B petition accordingly. And above all, the H-1B visa holder should be sure to carry documentation that accurately reflects their current employment situation, including copies of their the most recent LCA and H-1B petition with up-to-date work location information.

The United States Citizenship and Immigration Services (USCIS) issues 65,000 new H-1B visas annually for individuals with a Bachelor's degree or higher who will be working in a specialty occupation. In addition, the USCIS issues 20,000 H-1B visas to individuals with a Master's degree or higher under the advanced degree exemption every year. The H-1B fiscal year begins on October 1st, but the USCIS begins accepting petitions for the new fiscal year on April 1st. The USCIS will continue to accept petitions until the annual limitation on H-1B visas has been reached. Once the yearly cap has been fulfilled, H-1B hopefuls must wait until the next H-1B fiscal year to apply for an H-1B visa.

The time frame in which the H-1B cap is reached has varied from year to year. For instance, for Fiscal Year 2005, reverted to 65,000 limit, it was not filled until October 1, 2004. For Fiscal Years 2006 and 2007 it, likewise, took the cap a few months to be exhausted. Beginning in Fiscal Year 2008, though, the USCIS was flooded with H-1B petitions on April 1st, enough to exhaust the entire fiscal year cap by April 2, 2007. At that point, the USCIS instituted a lottery just to determine which of the hundreds of thousands of H-1B petitions received would be processed. This trend continued into Fiscal Year 2009, as well. Unlike the previous two years, however, the Fiscal Year 2010 cap remained open until December 21, 2009. At that time, it was becoming clear that the downturn in the U.S. economy was slowing the demand for new H-1B workers.

Unfortunately, the Fiscal Year 2011 demand for H-1B visas does not seem to have increased any from Fiscal Year 2010 and may, in fact, be lower. As of May 14, 2010, the USCIS had received only 19,000 cap-subject H-1B petitions and 8,100 cap-exempt H-1B petitions. This is far fewer petitions than had been received by this time last year. In comparison, the USCIS had received 45,000 cap-subject petitions and 20,000 cap-exempt petitions by May 18, 2009. It appears that much like the Fiscal Year 2010 H-1B visa cap, the Fiscal Year 2011 H-1B visa cap will take many months to reach. It is even possible that, for the first time since the mid 1990's, the H-1B, it will not be completely filled before the next H-1B fiscal year begins. However some trend analysts still predict that the H-1b cap will be reached this year around November. Only time will tell when.

In light of the immigration law recently passed in Arizona, similar legislation has been proposed in other states and, unfortunately, Michigan will be no exception. House Representative Kim Meltzer announced on May 7, 2010 that she is in the process of drafting and will be introducing an immigration bill modeled after the Arizona law in the Michigan Legislature. Though the actual bill has not yet been introduced, Representative Meltzer has been speaking publicly about the contents of the fledgling bill.

In particular, the proposed bill would give Michigan law enforcement the authority to inquire about an individual's immigration status if they have been stopped for any lawful reason. The stopped individual can be questioned about and required to prove their lawful status on the spot. Any individual that cannot prove their lawful status risks being arrested. Interestingly, according to Representative Meltzer, a Michigan Driver's License would be acceptable proof of lawful status. This begs the question, will the inability to produce a Michigan Driver's License lead to the presumption that an individual is not lawfully in the United States?

Representative Meltzer has stated the bill would prevent law enforcement from solely considering race, color or national origin when questioning an individual about their immigration status. The exact language of the bill remains to be seen, but based on Representative Meltzer's comments race, color and national origin can be a consideration, just not the only consideration. If the bill is in fact drafted in such a fashion, it would essentially be giving law enforcement the ability to discriminate and racially profile. Regardless of the reasons, discriminatory conduct and racial profiling should never be tolerated, let alone legalized by the Legislature.

There are several immigration-related bills that have been introduced in the Michigan Legislature not patterned after the Arizona law, including one which was just passed into law. The new law requires employers that are servicing public contracts to verify the legal status of their workers. The new law also prevents cities and counties from enacting legislation that restrains local authorities enforcement of immigration-related laws, otherwise known as sanctuary ordinances. There are also bills pending in the Michigan Legislature that require heightened scrutiny and additional verification of the employment authorization of foreign national workers.

With each immigration law passed at the state level, the immigration system becomes more and more fractured at the national level. Michigan is not the first state, and it certainly will not be the last state, to try to address the national system's deficiencies through mis-guided policies at the state level. These state immigration laws are a clear indication of more to come and Congress would be wise to reform immigration at the national-level before each state takes it upon itself to enact its own immigration law.

On May 5, 2010, President Obama held a Cinco de Mayo Reception to celebrate Latino culture in America. He used the opportunity to voice his concerns regarding Arizona's recently enacted immigration law and, more generally, to discuss comprehensive immigration reform. In his remarks, the President signaled the need for comprehensive immigration reform and his desire to begin work on such reforms this year. He also made his disapproval of Arizona's immigration law clear, stating "the answer isn't to undermine fundamental principles that define us as a nation. We can't start singling out people because of who they look like, or how they talk, or how they dress. We can't turn law-abiding American citizens --- and law-abiding immigrants --- into subjects of suspicion and abuse." The President is undoubtedly sensitive to the racial profiling and discrimination that will inevitably stem from the enforcement of Arizona's new law.

Though it may comfort some to know the Administration will be closely monitoring Arizona's law, and evaluating the civil rights and other implications it may have, the only solution in the end will be comprehensive immigration reform. Comprehensive immigration reform, as noted by President Obama, will be difficult, especially because it will require bipartisan support which has not been easy to come by as of late. Regardless, it is the only solution that will "close the door on [the] kind of misconceived action" that we recently witnessed in Arizona.

In his speech, President Obama called for "common-sense, comprehensive immigration reform." He did not provide many details regarding his vision for comprehensive immigration reform, but what he did say was enlightening nonetheless. The President predictably spoke out in favor of securing our borders and holding businesses accountable for "undermining American workers and exploiting undocumented workers." The most interesting comment, though, was what the President said regarding illegal immigration. Specifically, the President stated that people who are living illegally in the U.S. should "admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law -- and then get in line and earn their citizenship."

In one very carefully crafted yet informative sentence, the President laid out his proposal for how to handle the current population of people living in the United States illegally. Though he never used the word amnesty, the President appears to be endorsing a program that would ultimately allow undocumented foreign nationals to earn U.S. citizenship. The problem of illegal immigration is one of the greatest challenges facing comprehensive immigration reform and it is encouraging to know the President has a realistic and constructive solution to the problem. Before comprehensive immigration reform can be debated in Congress, however, a proposal must first be put forth. No bill has been introduced, but the Senate Democrats have developed a conceptual proposal for immigration reform. The introduction of the Senate Democrats' immigration reform plan is the first measure in what will surely become the next hotly debated issue of the Obama Administration and, needless to say, the world and history will be watching closely as the debate unfolds.

In the absence of national-level immigration reform, Arizona has passed its own version. Unfortunately, it is not the type of immigration reform that most in the immigration community would appreciate. Specifically, Arizona's new law requires foreign nationals to carry their immigration documents at all times and allows law enforcement to question any individual suspected of being in the U.S. illegally. Aside from the obvious problems of racial profiling and discrimination, laws such as this one continue to fracture an already cracked immigration system. This law will also, as many in the law enforcement community have pointed out, impede law enforcement's efforts. Not only will this monopolize police time with questioning individuals "suspected" of being an illegal immigrant, but individuals who have witnessed crimes may not be willing to come forward if they fear being deported.

Arizona's recent immigration law demonstrates why nationwide, comprehensive immigration reform is so desperately needed in this country. If not for the benefit of the foreign nationals whom have waited so patiently for a better system, then to prevent radical legislation like that passed in Arizona. Immigration is a federal issue under the constitution. By allowing individual States to dictate immigration reform, the system is going to become even more inconsistent and piecemeal. Arizona's recent legislation should send a clear message to Congress that it needs to regulate this area of the law and it must act promptly. If not, each State will take it upon itself to pass its own version of immigration reform, as Arizona has done. Clearly, other States will be inspired to introduce similar legislation or perhaps even worse.

Interestingly, Janet Napolitano, Homeland Security Secretary, preceded Jan Brewer as Governor of Arizona and vetoed several comparable bills that were placed on her desk for signature. Many different civil rights and immigration groups have staunchly opposed the bill, and the Mexican Government has even voiced its criticisms of the bill. Various groups have also vowed to challenge the law on constitutional grounds if signed into law by Governor Brewer. One can only hope that Governor Brewer realizes this law would do much more harm than good -- socially, politically and economically -- and veto the bill. The Governor has not made her position known and has another day to veto or sign the bill. Undoubtedly, the country, and perhaps other countries, will be watching closely to see what the Governor's decision will be.

1. The memorandum is in violation of the Administrative Procedures Act (APA), which governs rule-making by government agencies and sets forth minimum procedures which must be followed by government agencies issuing new rules. The United States Citizenship and Immigration Services (USCIS) did not follow the procedures required by the APA when it unilaterally changed the requirements for an H-1B employer-employee relationship.

2. Though the intended target of the H-1B memorandum was clearly IT Consultants, its consequences extend far beyond the IT Consulting profession. For example, doctors in many circumstances would no longer meet the H-1B employer-employee requirements because many are employed by entities other than the hospitals in which they perform their day-to-day services.

3. The policies set forth in the memorandum will negatively impact H-1B employers and employees alike. The memorandum imposes evidentiary obligations that an H-1B employer may not necessarily be able to fulfill at the time of the petition, such as letters from the end clients in the context of IT Consultants. These requirements are extremely cumbersome and make it very difficult for H-1B employers to petition for legitimately needed H-1B employees.

4. The adjudication policies outlined in the memorandum will undoubtedly spread to other nonimmigrant visas and further the effects of this illegal rule-making. If the Neufeld Memorandum is not withdrawn, not only will such policies have an adverse effect on adjudications in the H-1B visa category, but will embolden the USCIS to continue illegal rule-making in other visa categories.

5. The Neufeld Memorandum introduces new factors to be considered when evaluating an H-1B employer-employee relationship. The current regulations define an H-1B employer as one which is "indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." The memorandum's employer-employee relationship requirements far exceed the scope of the current regulation.

6. The Neufeld Memorandum creates more confusion than clarity surrounding the requirements for an H-1B employer-employee relationship, especially because the memorandum contains internal inconsistencies regarding the requirements of employee control. The memorandum is riddled with contradictions regarding whether the legal standard is "actual control" or the "right to control" the H-1B employee.

Continue reading "10 Reasons Why The Neufeld H-1B Memorandum Should Be Withdrawn" »

The American Bar Association recently released an executive summary on the findings of a study conducted to understand the current U.S. system for removal. It discribed the current system as "crisis." The study focused on the four governmental bodies that handle removal cases, namely the Department of Homeland Security (DHS), the Immigration Courts, the Board of Immigration Appeals (BIA) and the Federal Circuit Courts of Appeals. Not surprisingly, the report found that the four governmental bodies have actually contributed to the problems associated with the overwhelming number of removal cases and "are not doing as good a job as they should" in providing fair decision making and due process. To rectify these problems, the executive summary suggests a complete overhaul of the current removal system, but also provides scaled-back reforms that would require less political impetus to be realized.

With the goals of ensuring political independence and adjudicatory fairness, as well promoting greater efficiency and professionalism, the executive summary proposes three alternatives for revamping the system. The first option would be to create an independent Article I Court to replace the Immigration Courts and BIA. The trial function of the Immigration Courts and the appellate function of the BIA would both be handled by the Article I Court. The second approach would, similarly, eliminate the Immigration Courts and BIA, but replace them with an executive adjudicatory agency. The third, and final, proposal is considered the hybrid approach. The Immigration Courts and BIA would be replaced by an administrative agency that would handle trial-level cases and an Article I Court that would hear appeals. The executive summary ultimately concludes that the Article I Court is the best option, with the administrative agency being a close second. Despite the apparent advantages of the hybrid approach, the authors of executive summary do not endorse this method "since it is too complex and too costly relative to the other two options."

Acknowledging that overarching changes would take significant time to implement, if ever fully realized, the executive summary makes recommendations for smaller scale initiatives that could be undertaken to foster more immediate change. The suggestions, which would require the enactment of legislation, include:

• Requesting additional immigration judges;
• Permitting all eligible non-citizens to adjust to lawful permanent residence or eliminate bars to entry;
• Amending the definition of "aggravated felony" and eliminating retroactive application of such provisions;
• Curtailing the use of the administrative removal process by DHS and the use of expedited removal for non-citizens at the border or within the U.S.;
• Amending the definition of "crime involving moral turpitude";
• Eliminating or narrowing the mandatory detention provisions to persons who are clearly a risk;
• Restoring judicial review of discretionary decisions under an abuse-of-discretion standard;
• Permitting the Federal Circuit Courts of Appeals to remand cases to the BIA for further fact finding;
• Extending the deadline for filing a petition for review of a BIA decision; and
• Establishing a right to representation in adversarial removal proceedings and for individuals in groups with special needs.

Given the current contentious political climate, reforms that can only be accomplished through legislation seem highly unlikely to come to fruition anytime soon. Alternatively, the governmental bodies should concentrate on implementing the proposed reforms that do not require legislative action. These reforms include:

• Increasing the use of prosecutorial discretion by DHS officers and attorneys and giving DHS attorneys greater control over removal proceedings;
• Requiring asylum claims arising in expedited removal proceedings be adjudicated by asylum officers;
• Reducing the use of detention and expanding alternatives to detention;
• Requiring more written and reasoned decisions from immigration judges and more written decisions from the BIA;
• Increasing training opportunities for immigration judges;
• Limiting the conduct of hearings by videoconference to procedural matters in which the non-citizen has given their consent;
• Increasing three-member panel review at the BIA;
• Permitting de novo review by the BIA of immigration judge factual findings and credibility determinations;
• Amending regulations to require BIA removal orders to contain notice of appeal rights; and
• Modifying and expanding the Legal Orientation Program to reach additional non-citizens needing legal assistance.

The executive summary's objectives are certainly honorable and commendable, but unfortunately not completely plausible given the current political climate in the U.S. The governmental bodies should, at the very least, work towards implementing the recommendations that do not require legislation. And, hopefully, they will continue to strive towards the larger reforms that are necessary to ensure independence, fairness, efficiency and professionalism in the adjudication of removal cases

On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) released a guidance memorandum written by Donald Neufeld on "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements." This memorandum has left many employers, especially those whose employees work primarily outside of the main office, more confused than ever. They are rightfully asking if there is a sound legal ground that gives USCIS the basis to question whether its employees qualify for H-1B visas. Employer's struggles to understand the need for policy changes if they are headquartered in Michigan, for example, and have employees working Columbus, Ohio. USCIS also appears to struggles defending its ill conceived and legally questionable policy memo it issued last month

Despite the USCIS' February 18, 2010 collaborative session to hear feedback and gather input on the impact of this guidance, there is no guarantee the concerns expressed will be considered or that the guidance memorandum will be revised. Therefore, H-1B employers with "roving employees" should consider implementing, or confirm their business has the following policies in place to ensure their employer-employee relationship meets the "clarified" requirements.

One question, according to the memorandum, that the USCIS adjudicator must ask when assessing the existence of an employer-employee relationship is whether the petitioner evaluates the work-product of the beneficiary. For off-site employees, evaluations and progress reviews may be unconventional or infrequent, but employers should consider implementing a firm and consistent review policy. The H-1B employer should progressively review the foreign national employee's work and conduct an annual evaluation of the employee to establish the requisite control or right to control, as is stressed in the recent guidance memorandum. These progress reviews and evaluations should be adequately documented and maintained in the employee's personnel file.

Further, a USCIS adjudicator will also be looking for evidence of supervisory control over the employee. The USCIS will first look to see if the employee is supervised by the H-1B employer on-site. Supervision on-site by H-1B employers is atypical for roving employees. Accordingly, in the absence of on-site supervision, the USCIS will look for evidence of off-site supervision by the H-1B employer. To adequately establish supervision for off-site employees, employers should schedule and document regular meetings with such employees. These meetings can be accomplished through a combination of weekly calls, reporting back to the main office and site visits by the H-1B employer. Regardless of the method, the meetings should be regularly held and sufficiently recorded. Consult with an experienced immigration attorney to assure that any policy changes are well designed and implemented to help success in future H-1B petitions.

Continue reading "H1-B Immigration Attorney Discusses Needed Changes in Employer Policy In Light Of The Neufeld H-1B Memorandum" »

A special election was held on January 19, 2009 to fill the Senate seat left vacant by the late Edward Kennedy. Although this was a Massachusetts special election, people from Columbus, Ohio to Troy, Michigan and all across the United States watched intently as Republican attorney Scott Brown defeated the democratic front-runner, Martha Coakley. Some have declared that his election did away with the filibuster-proof majority of Congressional Democrats and, with it, any chance of immigration reform. The election of Scott Brown may have been a surprise, but should by no means be considered the end of any possibility of immigration reform in the United States.

It is true that today's contentious political climate has fostered a system where a party change in one single Senate seat could potentially jeopardize the passage of much needed reforms, including immigration. While campaigning for Congress, Scott Brown's statements regarding immigration policy focused on stripping rights for illegal immigrants and combating illegal immigration through enhanced border security. His legacy as a Massachusetts State Senator includes the introduction of legislation that, if passed, would have required foreign nationals to provide proof of work authorization to pursue a wage enforcement action against a U.S. employer. Unfortunately, such laws are short-sighted and fail to recognize that preventing wage enforcement actions could serve to embolden U.S. employers that hire and take advantage of undocumented workers.

However, Scott Brown's record as a U.S. Senator is yet to be established and, regardless of whether he is ultimately a proponent or opponent of immigration reform, he is but one vote. Comprehensive immigration reform, before and after the election of Scott Brown, needs to be a bi-partisan effort -- with the support of Democrats, Republicans and Independents alike. The President did not dedicate much of his State of the Union Address to immigration reform, but he did urge Congress to "continue the work of fixing our broken immigration system - to secure our borders, enforce our laws so that everyone who plays by the rules can contribute to our economy and enrich our nation." Hopefully, the members of Congress will heed the President's words -- remembering that the United States is a "nation made up of immigrants from every corner of the globe" and "neither party should delay or obstruct every single bill just because they can" -- and work towards passing positive immigration reforms in the upcoming year.

We are starting to see the beginning of the immigration reform debate. Robert Menendez (D-NJ) introduced The Military Families ACT which if passed would allow USCIS to grant permanent residency to children and spouses of those honorably serving or have honorably served in the Military even if the spouse or child is undocumented alien. Several Democratic members of Congress already voiced their support to this legislation.

Traditionally, only US citizen applicants are permitted to immediately confer permanent residency status to spouses and children, but not if they are undocumented. This Act attempts to correct this situation and take care of family members of the military personnel.

According to the Immigration Policy Center, currently there is 114,601 foreign born persons in the armed forces. They represent 7.91% of active duty personnel. Most foreign born personnel in the military were able to acquire Citizenship pursuant to Sec. 1440 of the INA which conferred Naturalization through active-duty during periods of military hostilities. But this law ironically does not extend status to their family members.

The US has been at war for more than eight years. The continued need for foreign born military personnel with various language and other skills is clear. The passage of this legislation to protect the family of this important group is without a doubt is in our clear national interest.

Rest assured that this bill is far from being signed into law. Many believe that this legislation should be part of the overall immigration debate which will not be jumpstarted before the next year. Also, expect opposition form some lawmakers such as Representative Lamar Smith who simply does not think this is necessary.

There is no debate that a comprehensive immigration reform is long over due. We must make adjustments and modernize our immigration legal system to remain competitive in the 21st century. AILA yesterday published a Talking Point calling for the elimination of the employment based immigrant visa backlog. The argument they made is clear and concise. We can not attract the best talent and stay competitive, if it takes up to seven years to issue a green card.

In today's employment immigration system, a green card application is filed while the candidate is in his twenties to receive approval in his thirties. By the nature of the process, we end up stifling entrepreneurial spirit rather than encouraging it. The foreign national is restricted in undertaking an intellectual or financial chance due to the uncertainly and the restrictions imposed by the pending application.

Most will agree that creative and productive talents are impatient by definition. The most talented and capable individuals will not wait a seven year period for a green card to come through. Consider the case of Sanjay G. Mavinkurve, featured in NY Times. Sanjay, an Indian national, is one of the key engineers that developed Facebook. Sanjay moved to Canada because the lengthy immigration process in the U.S. prevented him from joining his wife while the application is pending. Sanjay's story truly demonstrates the failure of our immigration system. The fact is there are many individuals who have left the U.S. for similar reasons as Sanjay.

While producing more homegrown talent is a priority, the truth is we must remain most hospitable to talents regardless of their origin. To that end, we must eliminate the immigrant visa backlog. AILA appropriately advocates that we should recapture all family based and employment based green cards not used in prior years, exempt family members form the current numerical limitation imposed on employment immigrant visas, and provide for appropriate exemptions for U.S. graduates in the field of science, engineering and mathematics. Finally, it calls for implementing a market based cap system that more appropriately addresses our need to remain more competitive.

It is difficult not to join in on this debate...This month the administration would like to lunch the debate on Comprehensive Immigration Reform...Last month Congress enacted the Employ American Workers Act, (EAWA), which is part of the American Recovery and Reinvestment Act. Basically EAWA places restrictions on hiring H-1B workers by companies receiving funds from the Troubled Asset Relief Program (TARP). The debate, some say, which way are we heading?

Our history teaches us that restrictions on immigration have almost always accompanied our economic downturn. It is difficult to make a good faith argument advocating that there is a sound nexus between restrictions placed on the H-1B program on one hand and helping troubled companies recover on the other. Many express concern as to whether it is wise to place limitations on troubled companies from hiring the most talented to fill critical posts as they struggle to recover. As we begin debating the Comprehensive Immigration Reform, the bigger question, however, is whether EAWA is the beginning of a trend or simply an isolated legislation.

Continue reading "Comprehensive Immigration Reform or Protectionist Immigration Laws ?" »