A Survey of the Policies Supporting U.S. High-Skilled Businesses and Workers
On November 20, 2014, President Obama announced a series of immigration reform measures that will have a significant, ostensibly positive impact on the Michigan and national business communities. At this time, many of the details are still being developed by the government agencies charged with administering the immigration laws. Some of these measures will require the promulgation of formal regulations (including notice and public comment), but others will be accomplished through legal memoranda and/or executive orders. Below is a summary of the President’s employment-based immigration reform elements.
I. Modernizing the PERM Process
On November 20, 2014, the Secretary of Labor announced that the Department of Labor (“DOL”) will perform its first comprehensive review of the foreign labor certification process since the Program Electronic Review Management or “PERM” regulations (found at 20 C.F.R § 656) were implemented more than 10 years ago. See Fact Sheet: Department of Labor to Pursue Modernized Recruitment and Application Requirements for the PERM Program (November 20, 2014).
Before an alien worker may be issued an employment-based immigrant visa (or “Green Card”) and admitted as a lawful permanent resident (“LPR”), the Secretary of Labor must, inter alia, certify that “there are not sufficient workers who are able, willing, qualified and available” at the time of application and in the place where the individual is to perform the work. See Immigration and Nationality Act (“INA”) § 212(a)(5)(A)(i)(I). A test of the U.S. labor market, as contemplated by the INA and articulated in the implementing DOL regulations, undoubtedly constitutes a laudable and important component of the employment-based immigrant visa system, necessary to protect the American workforce and promote a vibrant economy. Ironically, however, the current mechanism for executing such a test of the labor market, embodied in the labyrinthine PERM program, actually serves to hamper the job prospects of U.S. workers and thwart critical economic development.
Indeed, PERM is antiquated and draconian, resulting in protracted processing times and making it unduly difficult for U.S. businesses to recruit and/or retain – even in the face of clearly established shortages in the domestic labor market – the high-skilled workers that they need to remain competitive internationally. Most labor certification application (ETA Form 9089) job opportunities are for professional occupations in a science, technology, engineering, or mathematics (“STEM”) related field. See Fact Sheet: Department of Labor to Pursue Modernized Recruitment and Application Requirements for the PERM Program (November 20, 2014). And, of course, it has been empirically demonstrated that such foreign persons are often innovative professionals, including but not limited to scientists, researchers, engineers, entrepreneurs, and/or related technical specialists who are disproportionately involved in actual job creation and appreciable economic development within the United States. See, e.g., Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession, Partnership for a New American Economy (June 2014) (“Cities whose employers faced large numbers of denials in the H-1B visa lotteries experienced considerably less job creation and wage growth for American-born computer workers in the two years that followed. Denying H-1B visas didn’t help the economies of America’s cities or their U.S.-born workers. Instead, it cost their tech sectors hundreds of thousands of jobs and billions in missed wages”). With a 10-year-old system that has wholly failed to keep pace with modern business realities, particularly in America’s burgeoning tech sectors, an overhaul of the PERM regulations is overdue.
Fortunately, DOL has come to realize that “[a]dvances in technology and information dissemination have dramatically altered common industry recruitment practices, and . . . the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.” Fact Sheet: Department of Labor to Pursue Modernized Recruitment and Application Requirements for the PERM Program (November 20, 2014). Accordingly, in the coming months, DOL will attempt to “modernize” the PERM program, hopefully bringing the process into the 21st century and facilitating labor certification for highly-skilled immigrants. Some specific changes that will be considered include:
- Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
- Methods and practices designed to modernize U.S. worker recruitment requirements;
- Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
- Ranges of case processing timeframes and possibilities for premium processing; and
- Application submission and review process and feasibility for efficiently addressing nonmaterial errors.
Presumably the above modernization strategies will be realized through the formal rulemaking process, including notice and public comment.
II. Bringing Greater Consistency to the L-1B Visa Program
In his Policy Memorandum entitled “Policies Supporting U.S. High-Skilled Businesses and Workers,” the Secretary of Homeland Security directed USCIS to expeditiously develop and implement “clear, consolidated guidance on the meaning of ‘specialized knowledge.’” Policy Memorandum, Policies Supporting U.S. High-Skilled Businesses and Workers, Jeh Charles Johnson, Secretary of Homeland Security (November 20, 2014). He proceeded to explain that such USCIS guidance must “bring greater coherence and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.” Id.
The L-1B Specialized Knowledge Intracompany Transferee visa category was created by Congress in 1970. See INA § 101(a)(15)(l). Once a broad and flexible nonimmigrant visa option for multinational companies operating in the U.S., the L-1B classification has experienced a marked narrowing in recent years. In fact, USCIS is currently applying heightened adjudication standards drawn from largely obsolete case law and guidelines that predate the broadening of the L-1 category accomplished by the IMMACT statutory amendments.
Adding to the confusion, the current regulatory definition of “specialized knowledge” is nebulous and circular, failing to meaningfully expound upon the existing statutory text: “Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.” INA § 214.2(l)(ii)(D) (emphasis supplied). Thus, the definition of specialized knowledge awkwardly uses the term being defined as a part of the definition itself.
In Fogo de Chao v. U.S. Dep’t of Homeland Sec. (D.C. Cir. 2014), DHS actually argued that “specialized knowledge may ultimately be a relative and empty idea which cannot have a plain meaning[.]” (internal quotations and citations omitted). Of course, as the Fogo de Chao Court adeptly replied, this is “not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition[.]” Id. Unfortunately, based on the statistical data released by USCIS in response to a FOIA request made by AILA, it appears that such a trend in arbitrary and capricious government decision-making is precisely what has been plaguing the efficacy of the L-1B visa program in recent years. See generally National Foundation for American Policy, NFAP Policy Brief, L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase (March 2014).
By way of illustration, in fiscal year 2006, the denial rate for L-1B visa petitions was six percent. Id. Inexplicably, however, the denial rate for such petitions climbed to 30 and then 34 percent in fiscal years 2012 and 2013, respectively. Id. The 2013 denial rate thus reflects a puzzling increase of more than five-fold, despite the absence of defined regulatory changes or adjudication standards. Moreover, time-consuming Requests for Evidence (“RFEs”) from adjudicators of L-1B visa petitions also continued at a high level – 46 percent in FY 2013. Id. That means, in 2013, approximately half of all L-1B visa petitions to transfer key specialist employees were either denied or delayed by USCIS adjudicators. And, of course, the economic impact is profound, because time is money, and modern businesses are fluid organizations that simply cannot afford to operate at the (lumbering) speed of governmental bureaucracies.
In early 2012, USCIS officials actually pledged to develop new proposed guidance for public review and comment. The goal was to update and modernize the understanding of the specialized knowledge definition. Unfortunately, such guidance never materialized and, as confirmed by the above empirical data, the situation continued to deteriorate in the two years that followed.
Accordingly, the utility of the important L-1B classification has, in recent years, been hampered by the restrictive and arbitrary adjudication practices of USCIS Immigration Service Officers. To be sure, this nonimmigrant visa category is in desperate need of the “greater coherence” and “improve[d] consistency in adjudications” discussed by the Secretary of Homeland Security. Precisely how these (seemingly lofty) goals will be realized is not yet known. However, the long-awaited L-1B visa guidance is slated to be released by USCIS sometime in December 2014 or January 2015.
III. Work Authorization for H-4 Dependent Spouses
In May 2014, USCIS published a proposed rule to extend work authorization to the H-4 Dependent spouses of certain principal H-1B Specialty Occupation Aliens. Specifically, eligible individuals would include H-4 spouses of principal H-1B workers who:
- Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.
The notice and public comment period has concluded, and USCIS is now finalizing the above regulation, with an expected release date of December 2014 or January 2015.
In addition, one potential ancillary benefit of this action is a possible reduction in demand for annual cap-subject H-1B visa petitions, as the necessity for individual/principal work authorized statuses decreases. In the FY 2015 cap season, of course, USCIS received 172,500 cap-subject H-1B visa petitions for an available 85,000 visa numbers (with 20,000 reserved for beneficiaries with advanced degrees from U.S. universities).
IV. Timing of Filing for Adjustment of Status
The President and his cabinet also announced proposals aimed at enhancing worker portability within the employment-based immigrant visa system. Under the current system, foreign workers with approved employment-based immigrant visa petitions (Form I-140) often wait many years for their Green Cards to become available, particularly those aliens chargeable to the India or China per-country limitations. For instance, a foreign worker chargeable to the employment-based third preference category (professionals possessing a bachelor’s degree / skilled workers with at least two years of specialized training or experience) for India will typically encounter severe backlogs and attendant delays that are typically a decade long. On account of the rigidity and uncertainty associated with the current regulations, the career paths of these skilled alien workers can languish for years, as they are effectively beholden to their current sponsoring employers and positions, unable or discouraged from changing jobs or employers, seeking new employment opportunities, or even accepting promotions.
The President’s reform measures are expected to remove unnecessary restrictions and facilitate natural career progression for individuals who are mired in the quota backlogs. This will be achieved primarily through the policy guidance clarifying certain AC21 provisions governing employee portability, as well as the promulgation of new regulations granting the ability to file for adjustment of status at an earlier stage of the Green Card process, thereby extending the benefits of a pending adjustment – namely, the issuance of portable work authorization and advanced parole documents. This is expected to impact about 410,000 people.
V. Expanding the Availability of National Interest Waivers
Recognizing that the national interest waiver is currently underutilized, the Secretary of Homeland Security also directed USCIS to “issue guidance or regulations to clarify the standard by which [such a waiver] can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy.” Policy Memorandum, Policies Supporting U.S. High-Skilled Businesses and Workers, Jeh Charles Johnson, Secretary of Homeland Security (November 20, 2014). The national interest waiver permits advanced degree or exceptional ability aliens to seek Green Cards without employer sponsorship if their admission is in the national interest. Thus, one important function of the waiver is a bypassing of the Kafkaesque and dilatory labor certification process (see Part I, supra).
Perhaps the primary explanation behind the apparent underutilization of the national interest waiver is the legacy Immigration and Naturalization Service (“INS”) decision of Matter of New York State Dep’t of Transp. (NYSDOT), 22 I&N Dec. 215 (Acting AC 1998) and the exacting evidentiary burden advanced therein. Indeed, in the wake of Matter of NYSDOT, many meritorious, previously approvable cases have been denied.
VI. Broadening Work Authorization for F-1 Students in STEM Programs
Yet another glaring flaw in the current U.S. immigration laws is the lack of employment opportunities available to foreign graduates of American universities. Indeed, the U.S. continues to educate foreign students at its universities, only to compel them to depart upon the completion of their degree programs, taking their valuable skills overseas.
The November 20, 2014 immigration reform package includes components intended to combat this problem and facilitate America’s retention of its most valuable graduates. Specifically, DHS is proposing changes to expand and extend the use of the existing Optional Practical Training (“OPT”) program for F-1 students studying science, technology, engineering, and/or mathematics (“STEM”) at U.S. universities. The length of time in OPT for STEM graduates and the number of degree programs eligible for OPT will also be expanded. Other changes – such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field – are under consideration.
VII. Enhancing Options for Foreign Entrepreneurs
DHS has also pledged to expand immigration options for foreign entrepreneurs who meet certain criteria relative to creating jobs, attracting investment, and generating revenue in the U.S. While the details are still not settled, the President’s program will ostensibly allow certain inventors, researchers, and founders of start-up enterprises to be “paroled” into the United States (or be granted “parole in place” if already physically present) upon demonstrating that they have a certain amount of investment funding. DHS will also issue a new regulation or guidance clarifying that inventors, researchers, and founders of start-up enterprises are eligible to obtain a national interest waiver and, as a result, Green Cards.