Cyrus Mehta

Workable or Unworkable? The H-1B and L-1 Visa Provisions in BSEOIMA, S. 744

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By Gary Endelman and Cyrus D. Mehta

The Senate Immigration Bill, S. 744, entitled the Border Security, Economic Opportunity, and Immigration Modernization Act (BSEOIMA) has been applauded by immigration advocates for bringing much needed changes to the broken immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings,  among many other beneficial provisions. We refer readers to David Isaacson’s insightful blog post, SOME PRELIMINARY OBSERVATIONS REGARDING THE PROPOSED “BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION ACT.Unfortunately, the H-1B visa, and accompanying L-1 visa proposals in BSEOIMA have not been received with the same jubilation as other parts of S. 744. The main concern on everyone’s mind is how the bill would deal with the shortage of H-1B visa numbers. For FY14, which commences on October 1, the H-1B cap was reached on April 5, 2013. S. 744 increases the H-1B cap undoubtedly, but this increase is accompanied by changes to the H-1B and L visa programs, which may make it more difficult to obtain H-1B and L visas quickly. A nonimmigrant visa ought to provide a quick pathway for a much needed worker to be employed in the US. This BSEOIMA fails to do. BSEOIMA increases the H-1B ceiling to 110,000, which could go all the way up to 180,000.

However, any increase or decrease in H-1B visa numbers cannot be more than 10,000 visas from the previous year. The market based adjustments from year to year, according to the succinct BAL summary,  will be based on the number of H-1B visa petitions in excess of the cap and the average number of unemployed persons in “management, professional and related occupations” when compared to the previous year.  Moreover, BSEOIMA will also increase the Master’s cap from 20,000 to 25,000, but this new cap will only be applicable to those who have graduated from universities with advanced degrees in STEM (Science, Technology, Engineering and Math) fields. This would be a significant improvement from what we have today, which is a paltry 65,000 H-1B visas plus 20,000 for advanced degree holders, which under current law is not restricted to only STEM degree holders. The Society of Human Resource Management found in a recent national survey that 2/3 (66%) of employers hiring  full-time staff experienced difficulty in recruiting scientists, engineers, and cutting-edge technical experts, an increase from 52% in 2011. Until this gap between demand and supply is closed, the US economy cannot reach its true potential.

The current H-1B base cap dates back to 1990 when the American economy was only 1/3 its current size and when the importance of STEM talent was nowhere as evident as it is today. Our H-1B policy predates the full impact of the Internet and the transition to a knowledge based economy. While we welcome the concept of an H-1B cap escalator, it is overly complex and its lack of precision will not accurately predict or reflect the actual and ever-rising demand for world-class expertise. For this reason, Congress would be well-served to adopt the methodology set forth in the bipartisan Immigration Innovation (I-Squared) Act (S. 169) which simply and elegantly links H-1B annual adjustments to how fast the H cap had been reached that same year. Unfortunately, in exchange for an increase in H-1B visas to 110,000, with further adjustments based on a market based adjustment formula, BSEOIMA imposes significant restrictions to accessing the H-1B visa for all employers, as well as L-1 visas for some employers,  which will adversely affect corporate immigration practice. Unlike the 4 level wage system we have today, BSEOIMA will replace it with 3 wage levels, and all non-DOL wage surveys must be specifically sanctioned by DOL.  The new Level 1 wage shall be the mean of the lowest two thirds of wages surveyed but can’t be less than 80% of the mean of the wages surveyed. This is clearly wage inflation with a vengeance. Dependent employers will only be able to pay new Level 2 wages, which is the mean of all wages. The third level shall be the mean of the highest two thirds of wages surveyed. All employers will have to now attest that they have recruited for the position before filing an H-1B petition via an internet posting for 30 days, including advising where applicants can apply for the job. Dependent employers will have to undergo additional recruitment steps. The employer must offer a job (not just decline to hire the H-1B beneficiary) to any US worker who applies and who is “equally or better qualified.”  One can imagine how this will be interpreted by the DOL when an employer takes the top graduate of Wharton in a Bachelor’s program and turns down a U.S. applicant with an MBA from the University of Podunk.   Or, a law firm employer offers a position to a JD from a national law school over someone with comparable grades and achievements from a local law school. Will an employer dare to take the chance that might not be viewed as legitimate by the DOL? There is more. The period within which an H-1B complaint can be brought against the H-1B employer is lengthened from 12 to 24 months, even when DOL itself complains or when the source remains anonymous. This can also encourage malicious complaints from restrictionist organizations, and  is bound to result in many more H-1B investigations especially when the bill authorizes annual  H-1B compliance audits for any employer with more than 100 employees if more than 15% are in H-1B status. The advertisement must contain all requirements including the higher than market wage salary. The compelling rationale for all this is the obvious desire to discourage H1B sponsorship by making it more expensive, more invasive, and less concerned with protection of business norms.

Non-dependent employers will also be subject to the non-displacement attestations, which until now have only been applicable to dependent employers or willful violators. Employers will need to attest that they have and will not displace a US worker within the 90 day period before and after filing an H-1B visa petition, but they will not be subject to such a non-displacement attestation if the number of US workers employed in the same O*Net job zone as the H-1B worker have not decreased during the past one year ending on the date of the filing of the labor certification application. Dependent employers will be subject to a longer non-displacement period of 180 days, and they will not be able to take advantage of the non-reduction of workforce in the same job zone exception available to non-dependent employers.  We saw when similar recruitment and non-displacement attestations were imposed on certain financial institutions and other entities that were bailed out by the US government under the Troubled Asset Relief Program (TARP) that they stopped using the H-1B visa program and even rescinded offers to foreign MBAs who were graduating from top business schools. BSEOIMA seems to abhor the notion of “outplacement” of H-1B workers and L-1 workers, even while assigning workers to third party client sites is part of the business model of certain industries such as IT consulting. Dependent employers may not “place, outsource, lease, or otherwise contract for services or placement of an H-1B nonimmigrant employee.” A non-dependent employer must pay $500 if “outplacing” an H-1B worker. This model has been readily embraced by American companies, and provides efficiency by allowing companies to utilize skilled IT resources whenever needed. Consumers benefit, and it also allows companies to hire US workers higher up in the food chain.

The definition of “Dependent Employer” will remain the same: 1) Employer with 25 or fewer full time employees who hire more than 7 H-1B nonimmigrants; 2) Employer with at least 26 but not more than 50 full time employees who hire more than 12 H-1B nonimmigrants; 3) Employer with at least 51 full time employees who hire at least 15% of H-1B nonimmigrants.

Moreover, BSEOIMA seeks to ultimately bar a category of so called “super dependent” H-1B or L-1 employers by FY 2017 from filing new H or L petitions if more than 50% of their workforce are in H-1B or L status and hire 50 or more employees. For the first time, there will be a restriction on L employment too as a result. There is a sliding scale for this over the next few years: (1) if the employer employs 50 or more employees, and there is no distinction between full or part-time, the number of H-1B and L-1B, but not L1A, employees together cannot exceed 75 % of the total number of employees for FY 2015; (2) 65 %of total number of employees for FY 2016 and (3) 50% of total number of employees after FY 2016 which starts on October 1, 2017 . This does not apply to universities or non-profit research centers.The filing fees for the H-1B and L go way up in a clear effort to discourage such visa sponsorship.  For FY 2014-FY 2024, the H-1B and L filing fee will be $5000 for an employer that employs 50+ employees in the USA if more than 30% but less than 50% of such employees are in H or L status.  From FY 2014-FY 2017, the filing fee goes up to $10,000 per H-1B or  L petition if the employer employs 50+ employees, again no distinction between full or part time, if more than 50% but less than 75% of such employees are in H1B or L status. BSEOIMA goes beyond the L-1 Visa Reform Act of 2004 which allowed outplacement of L-1B workers so long as the L1 beneficiary remained under the direction and control of the  petitioner. Here, even if this was the case, such secondment would be limited to an affiliate, subsidiary or parent of the L1 petitioner.  All L employers who place L-1s at third party sites are now subject to a displacement obligation of 90 days before and after the L petition was filed.  For a new office L, the L beneficiary could not have been the beneficiary of 2 or more L petitions in the immediately 2 preceding years. For the first time, BSEOIMA introduces an explicit provision for L investigations that can be based on anonymous sources. In addition, DOL shall conduct annual L compliance audits for each employer with more than 100 employees if more than 15% are in L status. Non-compliance with new L restrictions can lead to fines up to $2000 per violation and a 1 year debarment + an obligation to make the employee whole through payment of lost wages and benefits. A willful misrepresentation of a material fact on an L petition can result in $10,000 fine and 2 year debarment. The DHS Inspector General must prepare a report on fraud and abuse in Blanket L program within six months of enactment. The opponents of immigration have long sought to impose on the L-1 visa many of the same straightjacket restrictions that have suffocated the H-1B.  Now it seems they have a major victory. While these provisions against dependent employers are designed to put certain industries out of business that rely on H-1B and L workers, BSEOIMA introduces the concept of “intending immigrant” which does provide some respite.  If an employer has an H-1B or L employee who is an “intending immigrant,” that worker is not counted in the employer’s dependency or “super dependency” calculation.  With respect to not counting an alien from the dependent calculation who is the subject of the labor certification, the employer has to qualify first as a “covered employer” who is an employer of an alien, which during the one year period that the employer filed a labor certification application for such alien, has filed I-140 petitions for not less than 90% of the total labor certifications filed during that one year period. However, labor certification applications pending for longer than 1 year may be treated for the calculation as if the employer filed an I-140 petition. The purpose of this “covered employer” definition is to probably ensure that employers do not file labor certifications without pursuing permanent residency on behalf of their employees. In reality, most employers who take the trouble to file labor certifications will go ahead and file the I-140 petition within the 180 day expiration period. It is clear that Professor Ron Hira, a critic of the H-1B and L visa program, was engaging in sophistry in his testimony before the Senate committee when he said that it would be easy for employers to avoid becoming dependent employers through paper pushing!!The question is what happens to the “covered employer” status if an I-140 petition (among the 90%) gets denied based on an ability to pay issue or a 3 year degree issue. All that the definition of “covered employer” requires is that the I-140s have been filed for no less than 90 percent of the aliens for whom a labor certification was filed during the 1 year period. With respect to not counting an alien who is the beneficiary of a pending or approved I-140 petition from the dependency calculation, the employer does not have to establish that it is a “covered employer.”

A pending or approved I-140 petition on behalf of a foreign national will remove that person from the employer’s dependency calculation. There is a possibility that an amendment might be proposed during the markup phase to remove the “intending immigrant” concept, and so every attempt must be made to preserve this concept in BSEOIMA, so as to give dependent employers some chance to legitimately do business in the US. H-4 spouses will be able to apply for work authorization, but only if the spouse is a national of a country that permits reciprocal employment. While H-4 spouses who are Indian nationals will benefit from this provision (as Indians have been most affected under the EB-2 and EB-3 backlogs), it is worth noting that India does not currently provide employment authorization to spouses of  those who hold an Indian employment visa. However, unlike the US with many nonimmigrant visa categories that authorize work, there is only one temporary employment visa category in India. The Indian employment visa does not parallel the H-1B visa in any way. It is difficult to understand why this proviso has been inserted in the bill when spouses of L-1 visa holders (as well as E and J-1 visas) can seek employment authorization without regard to whether the spouse’s country permits reciprocal employment.  Regardless of a few bad actors, there has been an unjustified anti-India sentiment in immigration policy for a few years. This is the genesis behind all the adverse provisions against H-1B dependent employers in BSEOIMA, who otherwise try very hard to comply with the existing complex rules in place.  This sentiment was reflected in the Neufeld memo that was specifically aimed against IT consulting, along with the jaundiced way that Indian equivalent degrees have been viewed by the USCIS. Then, even after an H-1B petition is approved, upon responding to a lengthy RFE and FDNS site visit, the visa applicant is delayed at the US consular post in India (although BSEOIMA brings back visa revalidation in the US for certain work visa categories). All this happened only since 2009 when all along before that there was no issue of H-1B workers being placed legitimately at third party sites, which is indeed how the business model works to the benefit of US businesses and consumers.

Clearly, the success of the Indian IT global model has led to a backlash in the same way that Japanese car makers were viewed in the late 1980s. The IT global giants along with the smaller IT firms have been “tainted” by the same brush. There is no doubt that corporations in the US and the western world rely on Indian IT, which keeps them competitive. Spurred on by Senators Durbin and Grassley, the architects of BSEOIMA have unwittingly prepared the way for a massive dislocation of the American economy which will no longer be able to benefit from the steady supply of world class talent that the Indian IT providers most directly harmed by this legislative vendetta have always supplied at prices that American business and its consumers could afford. What has gone unnoticed by the so-called Gang of 8 in the Senate is the fact that the ability of American companies to maintain their competitive edge has been due in no small measure, to the very Indian IT global model that BESEOIMA seeks to destroy.

One can also recall Senator Schumer’s infamous slip of tongue when he referred to Indian IT companies as “chop shops” instead of job shops at the time Congress outrageously raised the filing fees for certain L-1 and H-1B employers (to fund a couple of drones on the Mexican border), as if job shops is not enough of a pejorative. Senator Durbin also falsely insinuated this week that highly regarded employees of companies like Infosys pay to come to the US. These sentiments will now become part of the law, and it is not hard to guess the senators who have inspired these provisions, further supported  by the diatribe of Professor Ron Hira, who spew outrageous falsehoods in the guise of academic scholarship. Perhaps, one can look at the other side of the picture and find out how the H-1B visa program has benefitted the US and even creates jobs. It is unfair to assume that an employer who depends on H-1B workers in engaging in fraud. Interestingly, under BSEOIMA even “non-Indian non-dependent non-fraudulent employers” will need to go through more bureaucratic red tape, and will have to actually offer the job to a qualified US worker (unlike a PERM where all that happens is that the application is not filed) before being able to file the H-1B petition. The provisions that were previously enacted to target dependent employers in 1998 have now been expanded to cover all employers.

Unfortunately, the H-1B provisions, in an otherwise good Senate immigration bill, reflect a complete lack of understanding of the role of globalization and free trade in services during the second decade of the 21st century, which can benefit the US, India and the world. We need to draw attention to this fact in the hope that these discriminatory provisions against Indian IT, which are also inconsistent with principles of free trade and in violation of GATS, can be eliminated.  Indeed, BSEOIMA has extended the additional recruitment attestations that have only applied to dependent employers to all employers, along with artificially forcing employers to pay higher than market wages for H-1B workers.

BSEOIMA seems to give more emphasis on green card sponsorship rather than prolonging the temporary visa status of foreign national workers. To some extent, this is a good thing. By allowing foreign nationals to obtain green cards, it gives them mobility and to not be bound to one employer for many years. There is also a good provision that allows an H-1B who has been terminated to be accorded a grace period of 60 days, and an application to extend, change or adjust status during that period shall be deemed to have been lawful H-1B status while that application was pending. Indeed, many employers may be able to avoid the H-1B process altogether by directly sponsoring STEM advanced degree students on an F-1 visa for a green card without even having to go through the labor certification process. BSEOIMA also allows F-1 students to have dual intent, and so their desire to obtain green cards will no longer impede their ability to obtain an F-1 visa at a US consular post overseas. PhDs, regardless of whether they got the degree from a US institution or not, can also avail of this fast track green card and they do not also need to have their PhDs in a STEM field. Still, not all employers can rely on PhDs and students in the US who graduate with STEM advanced degrees. They will need to rely on the H-1B visa, and to some extent on the L-1B visa, and BSEOIMA will clearly not quell the demand of US companies for IT services and expertise through consulting companies. It remains to be seen whether the H-1B and L provisions in BSEOIMA prove to be workable or not. Everyone thought that when the Labor Condition Application was introduced in the Immigration Act of 1990, that the H-1B visa would become unworkable. Yet, H-1Bs have continued to chug along for 22 years, and if the new provisions get enacted, it is hoped that the government agencies administering the new H and L visa programs will interpret the provisions in a way that will allow them to work.

BSEOIMA is a transformational document heralding a fundamental realignment of US immigration policy. The paradigm shifts from family ties to merit-based strategies designed to invigorate the economy. Before, it had been easier to come for temporary work reasons and difficult to stay permanently. Now just the reverse will be true. Years ago, the H-1B was a lightning rod for critics while the L-1 sailed on smoothly in calm seas. No longer. For the first time, the L and the H are fused in the minds of its critics. At a time when our permanent immigration model is more open to STEM talent as never before, our H and L policy reflect a pervasive insularity that will contradict our trade commitments, slow down our innovation, and increase the intrusiveness of government regulators as they audit the legitimacy of immigration sponsorship decisions by those American employers who seek to take advantage of this brave new world.  For this reason, while BSEOIMA has much to commend it, what it gives on the permanent side of the ledger, it takes away on the H and L side. This lack of internal consistency must be resolved before it is born.

 

David Isaacson

THE SECOND CIRCUIT AMENDS SHABAJ v. HOLDER: WHAT HAPPENED TO FOOTNOTE 4? HAS THE POTENTIAL AVAILABILITY OF JUDICIAL REVIEW OF USCIS DECISIONS BEEN ALTERED?

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By David A. Isaacson

On April 25, 2013, the U.S. Court of Appeals for the Second Circuit released an amended opinion in Shabaj v. Holder, docket number 12-703.  The prior opinion in Shabaj was the subject of a previous post on this blog.  To summarize, Shabaj held that a claimed error by the USCIS Administrative Appeals Office (AAO) in analyzing whether an applicant for a waiver of inadmissibility under INA §212(i) had shown extreme hardship could not be reviewed by a district court, because the jurisdiction provided by 8 U.S.C. §1252(a)(2)(D) to review constitutional claims and questions of law is only available on a petition for review to a court of appeals.  (This is a very brief summary of a more complex issue; for additional details, readers are referred to the above-linked previous blog post.)
The only changes in the amended Shabaj opinion are in the footnotes, but one of those changes has particularly interesting implications.  Although the amended opinion adds a new footnote 3 addressing why a statutory reference to the Attorney General applies to the Secretary of Homeland Security (and makes a slight formatting change at footnote 2), the particularly interesting part is the change in what was formerly footnote 4 and is now footnote 5.
In the old footnote 4, the Court of Appeals sought to explain why Shabaj could not have simply filed a petition for review invoking its §1252(a)(2)(D) jurisdiction under his particular circumstances, but suggested that others under similar circumstances could do so:

Indeed, this Court denied Shabaj’s petition for review of his removal order over two years ago. See Shabaj, 602 F.3d at 106. Although Shabaj is ineligible to reopen his removal proceedings and file a petition for review because of his participation in the Visa Waiver Program, see 8 U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopen proceedings from attempting to reopen those proceedings in order to raise legal challenges to hardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), we would have jurisdiction over any “constitutional claims or questions of law” raised by petitions for review to this court.

As explained in my previous post on the original Shabaj opinion, the procedure for judicial review that this footnote seemed to point to would be interesting but not unprecedented:

The process that this footnote seems to contemplate, in which a Court of Appeals could review an AAO decision in a petition for review from a removal order even though the authorities that issued the removal order did not themselves have any ability to address the AAO decision, would not be unprecedented.  Judicial review of an AAO decision denying an application for legalization under the Immigration Reform and Control Act of 1986 or the related LIFE Act Legalization provisions proceeds in this way, as explained in Orquera v. Ashcroft, 357 F.3d 413 (4th Cir. 2003): the legalization applicant must become subject to an order of removal or deportation, and then petition for review of that order, to seek judicial review of the legalization denial, even though the immigration judge and the BIA cannot review the legalization denial during the removal proceedings.  If an arriving alien whose adjustment application or related waiver application is denied by USCIS later becomes subject to an order of removal, footnote 4 of Shabaj suggests that they could seek review of the USCIS determination on petition for review of the removal order, analogously to the process discussed in Orquera.

In its amended opinion, however, the Court of Appeals has removed the language that was previously in footnote 4.  In its place, the Court of Appeals wrote in the new footnote 5:

The government contends that a petitioner could never file a “petition for review” of a CIS hardship determination because petitions for review are only available for challenges to orders of removal, and CIS determinations are not made as part of removal proceedings. However, we need not decide whether a petitioner could file a “petition for review” of a CIS hardship determination directly with this court because, in this case, Shabaj filed his legal challenge in the district court, which indisputably lacked jurisdiction under § 1252.

The question that arises is whether this amendment of the Shabaj decision has any effect on the jurisdictional possibilities that may exist in the Second Circuit for judicial review of USCIS waiver determinations.

Certainly, the new Shabaj footnote 5 does not purport to preclude the sort of petition for review that the original Shabaj footnote 4 endorsed.  Rather, the Court of Appeals has explicitly chosen not to address the issue of whether such a petition for review is possible, while noting that the government, as one might expect, contends that it is not. Thus, it still remains possible for others, under appropriate circumstances as described in my previous blog post, to argue for judicial review of a USCIS determination that is in some sense either incorporated into an order of removal, as in Orquera, or constitutes a refusal to reopen an order of removal, such that the USCIS denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006). The Court of Appeals would then need to face the issue that it avoided as unnecessary in its amended Shabaj opinion.

Also interestingly, the new footnote 5 does not preclude the possibility that Mr. Shabaj or someone else in a similar position could have reopened his removal proceedings, in the way that the old footnote 4 seemed to assert such reopening was necessarily impossible.  Assume, for example, that Mr. Shabaj or someone else who had entered under the Visa Waiver Program had not actually waived his right to review in the way that the statute and regulations suggest he should have been required to.  Like the petitioner in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), whom the Second Circuit held could not simply be assumed to have waived his rights to removal proceedings, such a petitioner would properly be able to attack his removal order despite his Visa Waiver Program entry.  

Perhaps for this reason, the Second Circuit declined, in its amended opinion, to necessarily rule out the possibility of such judicial review; it said in the new footnote 5 merely that, regardless of whether or not Mr. Shabaj could have filed a petition for review directly with the Court of Appeals, he had not in fact done so.  While that might raise the question of whether Mr. Shabaj’s lawsuit in the district court should have been considered as a petition for review filed in the incorrect venue and transferable to the Court of Appeals in the interest of justice under 28 U.S.C. §1631, it is possible that such relief was not requested or considered, perhaps because the lawsuit evidently was not filed within 30 days of the final administrative order as a petition for review would need to have been (the original and amended opinions both indicate that Shabaj’s appeal to the USCIS AAO was dismissed on May 2, 2011, and his lawsuit filed on July 14, 2011).

Thus, while the amended Shabaj decision has deleted language which seemed to give the blessing of the Court of Appeals to a creative strategy for seeking judicial review of certain USCIS decisions, it has not precluded such a strategy.  In addition, it may implicitly have acknowledged that some Visa Waiver Program entrants, in circumstances similar to Mr. Shabaj’s, could in fact reopen their removal proceedings and seek relief in that way.


David Isaacson

Some Preliminary Observations Regarding the Proposed “Border Security, Economic Opportunity, and Immigration Modernization Act”

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As most readers of this blog are likely aware, earlier this week the U.S. Senate’s “Gang of 8” – that is, Senators Charles Schumer (D-NY), John McCain (R-AZ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ), Marco Rubio (R-FL), Michael Bennet (D-CO), and Jeff Flake (R-AZ) – introduced a proposed comprehensive immigration reform bill.  A copy of the bill as introduced is available on Senator Schumer’s website.  Its short title is the “Border Security, Economic Opportunity, and Immigration Modernization Act”, and so I will refer to it in this blog as BSEOIMA, although that acronym is somewhat more difficult to pronounce than previous well-known immigration bills such as 1986’s IRCA and 1996’s IIRIRA.  (Personally I would tend to pronounce it “B’soyma”, although Angelo Paparelli reports that Dan Kowalski, Editor-in-Chief of Bender’s Immigration Bulletin, has dubbed the bill “BESSIE MAE”.) Broadly speaking, it combines increased border security with a new “Registered Provisional Immigrant” (RPI) status available to much, but not all, of the current undocumented population – primarily those present in the United States since December 31, 2011 who lack any significant criminal record – and various provisions designed to handle the “future flow” of immigration somewhat differently than our current system, such as a merit-based system of awarding some immigrant visas to those who accumulate an appropriate number of “points” in a system reminiscent of that currently used in Canada.

The Immigration Impact blog of the American Immigration Council has already published some preliminary reactions to BSEOIMA, and AIC and the American Immigration Lawyers Association (AILA) have also released a detailed summary of the bill.  In this blog post, I do not claim to provide a comprehensive summary of the bill, which is after all 844 pages long, and which has already been summarized by AIC/AILA (and others as well).  Instead, I will simply highlight some of the portions of the bill that caught my attention on a first read-through, with citations to the page number of the introduced bill on which they appear.  Readers should keep in mind that this is a preliminary assessment of complex legislative language that may change in the future (assuming the bill passes at all), so it should not be taken as a precise description of the future final version of any provision; it is, so to speak, a first-draft reaction to the first draft of the bill.  Because this is an entirely subjective list of some provisions that happened to catch my attention, it is also naturally skewed to the sorts of provisions that were of interest to me as an attorney practicing immigration law; I do not mean to deprecate the significance of the substantial provisions for increased border security with which the bill begins, for example, but since I am not in the habit of advising people to enter the U.S. unlawfully or smuggle in others, they are of less direct relevance to my practice and thus attracted less of my initial attention.And this is not even a list of every single provision that caught my attention on a first read—such a list would be a bit too lengthy for a blog post. With those preliminaries out of the way, here are some of the provisions that were interesting to me and may be interesting to readers as well:

Nonimmigrants who are lawfully present according to DHS or DOS records will not be eligible for the new RPI status, even if they have violated status or been employed without authorization—apparently making the analysis under BSEOIMA different from the one that was used under IRCA to determine whether applicants were known to the government to be here unlawfully by the key date and thus eligible for legalization. Pages 64-65.  While nonimmigrants with a currently valid status as of the date of introduction of the bill are excluded from RPI status, however, if they have already been lawfully present for 10 years or finish accumulating that total period of consecutive lawful presence after the bill passes, they’ll be able to apply for LPR status under the new merit-based system, about which more below.

Expunged convictions don’t count for purposes of determining eligibility for RPI status, but otherwise any felony, an aggravated felony, or 3 misdemeanors will disqualify RPI applicants, except for convictions under state and local laws having immigration status/violations as essential elements—for example, some crimes created by Arizona’s recently infamous SB 1070.  Pages 61-66.

There is a limited discretionary waiver under which some people could be eligible for RPI status even after previous departure or removal, at pages 71-72.  While the language is complex, it appears that the waiver will be potentially available to certain “DREAMers” (those who would have been eligible for relief under the previously proposed DREAM Act that is in large part incorporated in BSEOIMA), spouses and children of U.S. citizens and LPRs, and parents of U.S. citizen or LPR children.

Employers will be able to continue employing people who they know are, or will be, RPI applicants, pending adjudication of the application for RPI status, without violating the INA.  Page 78.  This will help avoid the specter of employers being reluctant to assist with the RPI applications of their employees because, having come to know that their employee lacks valid immigration status authorizing employment, they would otherwise be supposed to fire them.

RPIs will not be able to be absent from the United States either for a continuous period of more than 180 days, or for more than 180 days in any calendar year, without extenuating circumstances; otherwise they will lose their status and not be able to adjust status to permanent residence.  Pages 89-90, 94-95.

While there are limited exceptions based on age and disability, most RPIs will need to show that they have been continuously employed or had resources above 125% of the poverty line, or have been full-time students, in order to adjust to LPR.  Pages 96-99.

The DREAM Act is present in modified form as proposed INA section 245D: the DREAMers will only need to be RPIs for 5 years before they can become LPRs, instead of the usual 10.  There can be a “streamlined procedure” for those who have been granted Deferred Action for Childhood Arrivals (DACA).  The DREAMers (including the DACA grantees) will be able to apply for naturalization as soon as they complete their 5 years of RPI and adjust to LPR (but not sooner).  Pages 110-116.

The “AGJobs” bill benefiting certain agricultural workers, which like the DREAM Act has been floating around for a number of years, also makes an appearance in BSEOIMA. Like DREAMers, AGJobs “blue card” holders will be able to adjust after 5 years under certain circumstances, not 10 years like other RPIs. See pages 150-255.

We learn on page 262 of BSEOIMA that while siblings of U.S. citizens and married sons and daughters over 31 would no longer be separate family preference categories, they would get points in the new merit-based system that will make up a substantial portion of future immigrant visa numbers.  Although the diversity lottery in its current form would be abolished, the preference for diversity in the current lottery system also lives on somewhat in the form of an award of points to people from countries from which fewer than 50,000 nationals were admitted in the previous 5 years.  (Page 263.)  You will also be able to get points in the new system for things like speaking English, being between the ages of 18 and 37 (you get the most points for being between 18 and 24), having specific types of employment, or even civic involvement.  See pages 260-265.

Beginning on October 1, 2014, people whose employment-based petitions and family-based petitions filed before the Act have been pending for more than 5 years will begin to become eligible for merit-based visas on that basis (although this eligibility will not be immediate for everyone affected, but will phase in over a 7-year period).  People who have been “lawfully present” for not less than 10 years will also be eligible for this non-points-based side of the merit-based visa system.  See pages 270-273.  RPIs will not be able to adjust status to LPR except under this second merit-based track, based on 10 years lawful presence—a provision which may hopefully be changed before the bill is finally enacted, since it seems unnecessarily cruel to prohibit, for example, an RPI who marries a U.S. citizen from becoming an LPR in the same way that any other lawful entrant who became a bona fide immediate relative of a U.S. citizen could adjust status under section 245(a) of the INA (even if they had, for example, overstayed a tourist admission).  Pages 108, 269-274.

Anyone, including RPIs and others, who was lawfully present and work-authorized for 10 years before becoming an LPR, will be able to naturalize 3 years after becoming an LPR instead of 5.  Pages 109-110.

BSEOIMA will recapture previously unused visa numbers from past fiscal years, so that should also reduce the backlog of people awaiting immigrant visa numbers. Pages 276-279.

Spouses and children of Lawful Permanent Residents (LPRs) will become “immediate relatives” not subject to a visa number limit. Pages 280-281.

The BIA’s highly dubious decision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), rejecting automatic conversion and retention of priority dates under the Child Status Protection Act, would be overturned legislatively by a provision of BSEOIMA making even clearer how automatic conversion is supposed to work.  Pages 287-288.

Priority dates from any approvable-when-filed immigrant visa petition will be transferable to any other petition, regardless of category.  Page 288.

The numerical per-country limitations will be raised to 15% for family-based cases and eliminated for employment-based cases, which is good news for Indian and Chinese nationals who currently face substantial employment-based backlogs, and also (to a somewhat lesser extent) good news for Mexican and Phillipine nationals who currently face substantial family-based backlogs. Pages 294-296.

Visa number usage calculations would no longer include employment-based derivatives, the employment-based first preference (all three subcategories), aliens with a doctorate, or former J nonimmigrant physicians who have completed their 2-year foreign residence requirement under section 212(e) of the INA or obtained a waiver thereof.  Pages 299-303.  STEM graduates with a master’s degree or higher (as a practical matter this just means masters since doctorates are separately exempt) would be able to be exempt from the visa number limits if they have a job offer from a US employer and earned their degree within the 5 years preceding the petition filed for them.  These STEM immigrants would not require labor certification.  Pages 304-312.

V visas will be extended to cover all family preference immigrants with approved petitions, but siblings and married children over 31 (whose family preferences are anyway being phased out under BSEOIMA) won’t get work authorization if they come on V visas, and will only be allowed to be present for 60 days per fiscal year.  The unmarried sons and daughters, and married ones under 31, will get work authorization with their V visas and will be able to stay on a longer-term basis.  Pages 313-317.  So for the family preferences that will continue to exist, this is like the old V visa; for siblings and over-31 married sons and daughters, it’s more like a dual-intent B-2 tourist visa.

The cutoff for stepchildren will be parental marriage by 21 years of age, consistent with the other “child” definitions of most of the rest of the INA, instead of the current age-18 cutoff.  Page 322.

The general cutoff age for adoptions valid under the INA will be extended from 16 to 18. Pages 322-323.

Immigration Judges and DHS would gain new discretionary authority to terminate removal proceedings or admit someone to the U.S. if removal or refusal of admission is against the public interest or would result in hardship to certain U.S. citizen or LPR immediate family members, although this new authority would not apply in the case of certain criminal removability grounds and certain other grounds of removability.  Pages 328-331.

H nonimmigrant petition beneficiaries who entered the US before age 16 and had a baccalaureate or higher degree from a US institution would be exempt from the unlawful presence bars (that is, the 3- and 10-year bars). The unlawful-presence waiver for others, under section 212(a)(9)(B)(v) of the INA, would be extended to cover hardship to a U.S. citizen or LPR spouse, son, daughter, or parent.  Pages 331-332.

J-2 spouses and children of J-1 exchange visitors would not be subject to the INA 212(e) foreign-residence requirement.  Also, physician training even under a status such as a J-1, which ordinarily requires a foreign residence which one has no intention of abandoning, would be dual-intent (that is, would not require such a foreign residence). Pages 367-370.

The exemptions from the English and civics testing requirements for naturalization in the case of certain older immigrants would be expanded somewhat.  Those who are over 65, and have lived in the US as an LPR for 5 years, would be exempt from the English/civics tests.  The limited exemption from the English language requirement, under which the applicant is still required to take the U.S. civics test but can do so in their native language, would apply with 50 years of age plus 20 years as an LPR, 55 years of age plus 15 years as an LPR, or 60 years of age plus 10 years as an LPR.  For those 60 years of age or older who had been LPRs for 10 years, the civics-test requirement could be waived on a case-by-case basis.  Pages 393-394.

The one-year filing deadline for asylum claims would be eliminated, and people who have been granted withholding of removal but denied asylum because of the one-year deadline would be allowed to reopen their cases. Page 552.

Over the next three fiscal years, there would be 75 new Immigration Judges appointed each fiscal year, for a total of 225, in an effort to reduce the backlog of immigration court cases.  Pages 566-567.

H-4 spouses will be employment authorized so long as they are from a country that grants reciprocal benefits to U.S. citizens. Pages 663-664.

H-1B nonimmigrants whose employment terminates will have a 60-day grace period, and will also be considered to be maintaining H-1B status during the pendency of “a petition to extend, change, or adjust their status” that is filed during such 60-day grace period. Some low-risk H-1B nonimmigrants, as well as A, E, G, (other) H, I, L, N, O, P, R, or W nonimmigrants, can have their visas renewed in the United States at the discretion of DOS.  Pages 664-667.

F-1 student status will be dual-intent for a bachelor’s degree or above: that is, students applying for visas to study in bachelor’s degree programs, doctoral programs and so on will not need to show intent to return to their home country afterwards, but can plan to remain in the United States and put their valuable knowledge to use here.  Pages 725-727.

E-4 nonimmigrant visas, which would function like the current E-3 visas available to Australian nationals working in a specialty occupation, will be created for South Korea and other countries with which we have free trade agreements as recognized by DHS with the concurrence of DOS and the US Trade Representative.  There is a limit of 5,000 E-4s per sending country, which does not include derivative spouses and children. Pages 732-733.

There will be E-3 visas created for Irish nationals which only require a high school education or at least 2 years of work experience in an occupation requiring at least 2 years of training or experience (a la the current diversity visa standard).  Page 734.

O-1s will get portability between employers like what H-1Bs have now.  Pages 736-737.

Nonimmigrants with a pending application for extension of stay and related work authorization are authorized to continue employment until the application is adjudicated (as opposed to the current limited regulatory extension of employment authorization). Page 738.

Canadians over age 55 will be allowed to come as B-2 visitors for up to a 240-day period out of any 365 days, and maintain a home here, as long as they also have one in Canada.  Pages 742-744.

Retirees over 55 will be able to get a new Y visa, renewable in 3-year increments, if they use at least $500,000 to purchase one or more residences in the US which sold for more than 100% of the most recent appraised value (per their local property assessor), reside here for more than 180 days per year, and meet certain other financial requirements.  Pages 744-746.

A limited number of new W nonimmigrant visas will be available for workers in O*Net Job Zone 1, 2, and 3 occupations, but they will not be available for  higher job zones (requiring more than 2 years of preparation) or positions requiring a bachelor’s degree or involving “computer operation, computer programming, or computer repair”.  Pages 776-778, 803-804.

W status is for an initial term of 3 years, renewable for additional 3-year periods.  You have to first apply at a consular post abroad to be designated a “certified alien”.  If you are unemployed for more than 60 days, you have to leave. You can only work for a registered employer, and they have to first carry out recruitment for their desired registered position and fail to find a “qualified United States worker . . . who is ready, willing and able to fill such position”.  The recruitment is reminiscent of PERM recruitment for professional occupations, except that a “U.S. worker” would be defined more broadly than under PERM, to include anyone with unrestricted work authorization, rather than only U.S. citizens, LPRs, asylees, refugees, and temporary residents such as RPIs or their IRCA equivalent.  Pages 785-786, 789-804.

The registered W-visa position continues to be registered if the employer has filed an I-140 petition for the W worker by the end of the 3-year period.  It will cease being so if the petition is approved or denied, or the employment of the worker is terminated. Pages 805-806.  This raises the question of what happens if the petition is approved, but the priority date is not current—is the worker then stuck in limbo?  That may be an unintended flaw in the legislation that can be fixed as the bill moves forward.

W visas are, at least, dual-intent, page 828, so it isn’t a problem that the W worker is anticipating such a petition being filed for him or her.  But, W nonimmigrants will not be able to take advantage of the prong of the merits-based visa system that will allow others to become LPRs after being in lawful status for 10 years.  Page 271.  This, too, is an anomaly that may hopefully be fixed as the bill moves forward—why should W nonimmigrants be treated less favorably than absolutely everyone else who is lawfully present?

The W nonimmigrant may terminate his employment for any reason and take up employment with another registered employer in another registered position.  Page 819.

There will be new X nonimmigrant visas, and a new immigrant visa program, for qualified entrepeneurs.  The qualifications have to do with number of jobs created, financing devoted to your company by qualified venture capitalists etc., and/or your company’s revenue.  You will need to maintain nonimmigrant status for at least two years before you can petition as an entrepreneur immigrant (although not necessarily as an X nonimmigrant).  Pages 828-844.

And thus ends this first list of some highlightsof BSEOIMA.  Watch this space for additional blogging about BSEOIMA either from this author or from others at Cyrus D. Mehta and Associates, PLLC…

Cyrus Mehta

212(k) WAIVER VICTORY TEACHES THAT IT’S NOT WORTH MANIPULATING THE IMMIGRATION SYSTEM TO SETTLE PERSONAL DISPUTES

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When two parties are in a personal dispute, and one of them is not a US citizen,  it is often tempting to use the immigration system to seek a remedy. For instance, the desire to see someone you are feuding with get deported from the United States may be tempting. However, the immigration system may not be the best forum to settle personal scores. If two spouses are in marital discord, the spouse who wishes to seek a remedy can resort to a family court to seek a separation rather than manipulate the immigration system to dump the foreign national spouse. The complaining spouse may also press criminal charges against the other spouse in the event that there are allegations of physical abuse.  But relying on the immigration system, when there  are clearly other avenues to seek redress, may likely backfire, especially if the claim is not found to be credible,  and the non-citizen you wish to see deported may still end up with a green card.

This is what happened in a case our firm handled on behalf of a foreign national spouse who was in removal proceedings. The unpublished decision of Immigration Judge McManus in New York Immigration Court where he was ultimately vindicated and victorious,  Matter of X (November 2012), can be found here.

The foreign national spouse, the Respondent in the removal proceeding,  had married a US citizen in India through an arranged marriage in late 2006, which based on the record and voluminous evidence was undoubtedly bona fide and celebrated with much pomp. After the Respondent received an immigrant visa at the US Embassy, based on the US citizen spouse filing an I-130 petition, they travelled back to the United States in July 2007. The Respondent was refused admission at the airport when his wife alerted Customs and Border Protection officials that he married her solely for the green card, and that he had physically abused her. After being detained by the CBP for one day in the airport, he was denied admission as a lawful permanent resident and further paroled into the country for deferred inspection. Three days later, his spouse withdrew the I-130 petition she had filed on behalf of the respondent. After over two years, Respondent was served with a Notice to Appear in 2009 charging him with removability under INA § 212(a)(7)(A)(I)(i) as an alien not in possession of a valid entry document.

The first  issue in this case was whether the Respondent who was issued an immigrant visa could be admitted even though his US citizen spouse indicated at the airport that she wished to withdraw the I-130 petition, which she did three days later. Alternatively, could the Respondent be eligible for a waiver under INA section 212(k)?

With respect to the first issue, the IJ denied our motion to terminate removal proceedings. Even though former INA § 205 required the revocation of the petition to be communicated to the beneficiary before he commenced his journey to the US, it was amended in 2004, and new §205 did not contain this limitation. Under new § INA 205, an I-130 petition can be revoked at any time for good and sufficient cause, and the revocation shall be effective as of the date of the approval of the petition. While we were aware of the change in the statute, we pointed out that the government had not amended the regulation at 8 CFR § 205.1, which still contained the limiting language of the old statute. We argued that by not rescinding the regulation, the government still intended to interpret new § 205 in accordance with the way it was interpreted prior to the amendment. The Court held that when there is a conflict between a statute and a regulation, the amended statute trumps the regulation by citing K Mart Corp v. Cartier, Inc., 486 U.S. 281, 291 (1988). The Court also rejected our related argument that the Respondent should have been found to be admissible, notwithstanding the withdrawal of the I-130 petition, as he still had a valid immigrant visa issued  by the State Department, which had not been revoked.

With respect to seeking a waiver under INA §212(k), the IJ found  the Respondent to be eligible for the  waiver as he  was unaware of the ground of inadmissibility before he embarked upon his journey to the US.

INA §212(k) provides, as follows:

Attorney General’s discretion to admit otherwise inadmissible aliens who possess immigrant visas – Any alien, inadmissible from the United States under paragraph (5)(A) or (&)(A)(i) of subsection (a), who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.

This case should be contrasted with Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987), which is controlling. In Aurelio, the petitioner’s death resulting in the revocation of the I-130 petition did not entitle the respondent in that case to a 212(k) waiver  as the respondent should have known about the inadmissibility arising out of the  death of her father one year prior to her departure The IJ found in this case, unlike in Aurelio,  that Respondent could not have possibly known that his spouse would revoke the I-130 petition three days after his arrival in the US. Respondent was eager to embark on a new life in the US with his spouse and could not have known of the steps she was planning to take to withdraw the I-130 petition.

Although the DHS attorney vigorously sought to pretermit Respondent’s motion to seek a 212(k) waiver on the ground that he was not in possession of an immigrant visa, the IJ agreed with our contention that “the invalidity of the visa..is the reason a waiver is required, not a reason the waiver cannot be granted.” See also Kyong Ho Shin v. Holder, 607 F.3d 1213 (9th Cir. 2010) (“By definition, §212(k) refers to visas that are invalid in nature – otherwise, the applicant would not be seeking a waiver of inadmissibility in the first place”). The IJ also soundly rejected the government’s claim that Respondent ought to have foreseen his potential inadmissibility as he was experiencing difficulties in the marriage and could have expected his wife to level allegations against him upon his arrival in the US. The Court held, “[S]imply because there were some problems in the marriage, which is typical of most couples, does not mean that Respondent should have known that his wife would withdraw her  support for Respondent’s visa application immediately upon arrival in the United States.”

Moreover, Respondent also merited a favorable exercise of discretion as the IJ credited Respondent’s detailed testimony, along with the testimony of his sister and uncle,  that he did not abuse his spouse in India, and agreed that several allegations made against Respondent at the airport and elsewhere may not have been truthful. For instance, one of the allegations by the spouse was that Respondent beat her up on the plane, which the Court thought found “unlikely that such a physical altercation would have  gone unnoticed, especially in light of evidence in the record indicating that such behavior is taken extremely seriously by airlines.” We provided evidence of how in a post September 11 world, such incidents could not possibly go unnoticed.  Another allegation that Respondent was  carrying drugs on his person while entering the country was also proved to be false as there was no indication, especially since he had been searched by the CBP, upon his arrival in the country. The allegation that the wife was kept captive in India was also disproved with credible accounts that she went out to Bollywood movies, visited relatives (including relatives in other Indian cities), and religious places on a regular basis.

The decision concludes as follows, “While the Court cannot know why Ms. [redacted] took such dramatic steps to withdraw the I-130 petition that she filed on Respondent’s behalf, the Court is troubled by the seemingly false statements made by Ms. [redacted] to various immigration officials, and agrees with Respondent’s counsel that it was improper for her to attempt to manipulate the immigration process in the manner that she did.”

The government doggedly pursued the case for over five years. Responded was denied admission in 2007 upon his arrival in the US and paroled for two years. After unsuccessfully convincing the government to admit him, in 2009, the government instead initiated removal proceedings against Respondent,  and the case dragged on for another three and a half years in Immigration Court, which included several hearings and motions. After the IJ issued the decision granting the Respondent a waiver under §212(k) and admitting him as a lawful permanent resident in late November 2012, the government did not appeal the decision within the 30 day period. To top up the hard fought victory in Immigration Court,  Respondent very recently received his actual green card in the mail!

Cyrus Mehta

THE MANY PROBLEMS SURROUNDING THE H-1B VISA CAP

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Everyone was rushing to file H-1B visa petitions between the April 1-5 window as there was a sinking feeling that the USCIS would receive more than the 65,000 cases allocated under the H-1B annual cap as well as more than the 20,000 cases under the additional Master’s cap. Just as we were emerging from the H-1B filing madness – as we were all underwater working desperately hard for our clients – USCIS announces on April 5 itself that both the caps have been reached.

This means that all H-1B cases properly filed between April 1-5, 2013 will be subject to a randomized lottery. It also means that those not selected, will need to wait to file next April 2014. If we do not get more H-1B visa numbers from Congress, people rejected this year could stand a chance of being rejected next year in 2014 too based on the randomized lottery. Those who will be selected, and the chances of being selected depend on how many more H-1B cases USCIS received over 85,000, can only start their H-1B employment on October 1, 2013.

If a company now wishes to hire a badly needed engineer from abroad, it will need to wait till October 1, 2013 before this person can come on board, and that too if this worker was lucky enough to be selected under the lottery. It is self evident that the cap hinders the ability of a company to hire skilled and talented workers in order to grow and compete in the global economy. The hiring of an H-1B worker does not displace a US worker. In fact, research shows that they result in more jobs for US workers.

It is also ironic that the USCIS should announce the H-1B cap on the same day that the job report for March 2013 was announced. The US added a dismal 88,000 jobs in March, but US employers clearly filed more than 85,000 H-1B cases this week for jobs that they can only fill on October 1, 2013. It will be interesting to further understand why there has been this demand for H-1Bs when the job report was so anemic. The H-1B cap was reached much quicker this year, and the last time the cap was reached so quickly was in 2008. It’s clear that the economy has revived notwithstanding the March job report, and business immigration lawyers, who rush to file H-1B cases on behalf of US employers,  tend to see upticks and downturns in the economy faster than others! Some more analysis is needed on the latest job report.

Still, it makes absolutely no sense to impose an H-1B cap. Let the market do the job of determining how many H-1Bs can enter the US based on the fluctuating demands of employers. At one point, when the H-1B cap prior to 2003 was 195,000 for a few years, this quota was never filled. Therefore, H-1B quotas do not necessarily dictate how many H-1B visa cases will be filed. It is market conditions that determine H-1B usage. Based on the lessons from the H-1B cap, it does not make sense to impose arbitrary caps at all, especially with respect to other temporary visas. In the negotiations involving comprehensive immigration reform regarding low skilled workers, business and labor trumpeted that a deal had been reached on future flows. When times are good, according to the deal, employers would be able to benefit from 200,000 workers; and when times are not so good they would only be able to get 20,000 workers. While a flexible cap based on market conditions is still better than a fix cap, such as the H-1B cap, there is no way of knowing whether businesses may need more than 20,000 low skilled workers even when there is an economic downturn. And when times are good, there is no way of knowing whether 200,000 visas would be sufficient.

The H-1B cap also arbitrarily forces employers to make hiring decisions for positions that will only materialize after 6 months. In certain industries, such as IT consulting, employers may not yet have an assignment for a worker who may be placed at a third party client site. Yet, an H-1B petition filed without being able to specify with laser precision the work site will be less likely to be approved by the USCIS. Indeed, in recent times, an employer who designated its headquarters as the worksite, when the intention was to place the H-1B worker at client sites, have been criminally prosecuted for not stating its true intentions and for also not paying the workers the H-1B wage until they were assigned to a client.

While the allegations made in the indictment against this employer are particularly egregious, many bona fide IT consulting employers are unable to precisely locate the work assignment six months ahead of time even though they do have a legitimate roster of clients, ongoing work and have every intention to pay the H-1B worker the required wage as soon as  he or she arrives in the US on October 1, 2013. Such employers who genuinely indicate in their H-1B petitions that they may not have a current assignment but do have the ability to offer a position on October 1, 2013, should not be penalized by wholesale denying their H-1B petitions or to be perceived as engaging in fraudulent conduct. After all, the concept of a fixed worksite has become quite antiquated in the second decade of the 21st century as H-1B workers in certain industries can be mobile, work out of their laptops from remote locations, and visit the client location whenever necessary. It is hoped that future H-1B rules give way to the more contemporary notion of a workspace rather than a physical worksite.

Finally, IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa. However, it is this very business model has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  Such a business model is also consistent with free trade, which the US promotes vehemently to other countries, but seems to restrict when it applies to service industries located in countries such as India that desire to do business  in the US through their skilled personnel.

Negotiations in the Senate regarding high skilled  workers in a comprehensive immigration reform proposal suggest that a future H-1B visa for employers who rely on H-1B workers may be more restrictive or they be subject to a much higher fee. If there is so much opprobrium against  the use of H-1B visas by offshore IT consulting companies, why not create a whole new visa category that will be linked to free trade in services. This visa, which we can call a Service Visa,  can be somewhat more restrictive than the H-1B visa by requiring a lesser duration of time and perhaps require that the worker be employed at the foreign entity before such a visa can be used. It also need not allow “dual intent” and require the worker to have ties with the home country. If such a worker is to be sponsored for a green card, he or she may have to first switch to the H-1B visa.

In conclusion, H-1B caps are generally bad for US employers and for the economy, and this one on April 5, 2013 has been particularly nasty. They do not allow employers to function and compete in a more natural market for skilled workers. The H-1B cap has not been raised for a long time, and it is time that we creatively reform the system rather than  forcing employers to madly rush to file H-1B petitions in early April each year, only to find their fate being determined by a randomized lottery with respect to workers they so badly need to remain competitive.

Cyrus Mehta

H1B DITTY

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By: Myriam Jaidi

[An LLMJ creation set loosely to an old “gangsta” tune.  A thank you to Elizabeta Markuci for a lyrical turn]

Here’s a little somethin’ bout the H-1B
Havin’ so much trouble as a legit visa category
Grass-ley would like to say
It’s a crazy visa status, should be thrown away

Since it was established, so much trouble
Cuz of the few employers pullin’ tricks on the double
Breakin a rule or two, that’s what a few of them do
Not caring how it affects the rest of you

With a fake job no pay fake work-site
Messing things up for employers who do everything right

Hope the Gang of 8 is getting with it.
H-1B numbers need to increase by a big bit
A few indictments of alleged fakers here and there
Shouldn’t hurt the legit employers everywhere

Why the IT business model being picked on?
Many companies place people off-site, why not Dibon?
If they are benching they aren’t the best role model at the moment
But ‘til they’re proven guilty, the H-1B shouldn’t foment.

Everywhere you look, people trifling
Blaming H-1Bs for job growth stifling.
Entrepreneurs had hope with EIR and all that,
Now shaking their heads as their petitions go splat.

The H-1B should be a status built to last
Just ask Bill Gates, he’ll tell you: you better move fast
He’s lucky.  He has options. Like Canada, where he can bail to.
What about everyone else, what should they do?

Lobby, lobby, just like Mark Z. do!
It’s not about mentality it’s about economic need and reality
Lobby, lobby

Hopin’ you sophisticated politicians hear what they have to say.

And yes, April Fools!

Cyrus Mehta

The Way We Count

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By Gary Endelman and Cyrus D. Mehta

“Perfect numbers like perfect men are very rare.” Rene Descartes

Now is the time to change the way America counts green card numbers.  Congress is presently debating comprehensive immigration reform and grand events are likely to reshape the legal landscape. Yet, at such a seminal moment we ought not lose sight of the value of technical modifications that can have enormous consequences.  Most Americans, including virtually all policy makers, would be surprised to learn that the majority of green cards awarded each fiscal year go not to the principal aliens themselves but to dependent family members, thus reducing even further permanent migration to the United States. In fact, as the waiting lines over the past decade have grown ever longer, this pattern has become more pronounced.  A quick overview of green card distribution during the first decade of the 21st century quickly makes this evident.  Let us take employment based migration in the employment-based first preference (EB-1) category as our data sample. In 2000, there were 5,631 new arrivals under the EB-1, 2,241 went to the principal vs. 3,390 to family members. This means that family members accounted for 58.67% of EB-1.  In 2012, there were 1,517 new arrivals under the EB-1. 516 went to the principal & 1001 to family members. This means that family members accounted for 65.98% under the EB-1. Things are getting worse.

It need not be that way. Neither the law nor logic commend or require such a result. Without creating a single new immigrant visa, Congress can eliminate quota backlogs and restore relevance to a green card system that is sorely in need of such restoration. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression will quickly become a thing of the past. Nor is this merely something for idle academic debate. Rather, it is essential if the path to legal resident status for the undocumented is ever to mean anything. Under any conceivable iteration of CIR, even if there is an expansion of immigrant visa numbers in the preference categories, the undocumented will be relegated to the back of the green card line behind those patiently waiting under the legal system. Unless a solution is found to remediate the tyranny of priority dates, the undocumented like the ancient Israelites who left Egypt, will never enter the promised land.

Section 203(d) of the INA is the provision that deals with family members. Let us examine what INA § 203(d) says: A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent. There is nothing in INA § 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers.  Is there not sufficient ambiguity in INA § 203(d) to argue even under current law that family members should not be counted against the quotas?

There is no regulation in 8 C.F.R. instructing what INA § 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. § 42.32 only parrots INA § 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. § 42.32 does not provide further amplification on the scope and purpose of INA § 203(d). We acknowledge that INA 203(d) derivatives are wholly within the preference system and bound by its limitations.. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits. 

INA § 203(d) took effect under IMMACT 90. It still remains a mystery as to why INA § 203(d) was enacted. There was no need to do so since family members were counted in the pre-IMMACT90 quotas. No clear answer can be gleaned from the legislative history of IMMACT 90. Though family members were explicitly exempted from being counted in the House bill, such exemption was removed in conference with the Senate. Ultimately, Congress enacted INA § 201(d), which set a numerical limit of 140,000 for EB immigrants, and it appears that the intent of Congress in IMMACT 90 was to count family members in the final legislation. Was INA § 203(d) introduced to ensure that family members would be counted especially after the House sought to exempt them? Or was it the converse? Could INA § 203(d) have been a vestige of the House’s intent that was never taken out – to make sure that, even though these derivatives would  be counted against enlarged EB cap, they would not be left out in the cold but still get the same “green card” benefits as the principal?

If the Executive wanted to reinterpret INA § 203(d), there is sufficient “constructive ambiguity” here too for it do so without the need for Congress to sanction it. We have explained this in our prior article, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center! But we do not want to end on such optimism and throw all caution to the winds.. Thus, we propose a simple technical fix in Congress, which is to exclude family members from the FB and EB quotas. We do not see why this cannot be accomplished as there is already a pedigree for such a legislative fix. The proposed wording to INA 203(d) would be a simple add on to the current text, such as: “All family members, including the principal alien applicant, shall be counted as one unit for purposes of INA 201(c) and 201(d) limitations. They shall not be counted on an individual basis.” Not only did Congress try to remove family members in IMMACT90, but also attempted to do so in S. 2611, which was passed by the Senate in 2006. Section 501(b) of S. 2611 would have modified INA § 201(d)(2)(A) to exempt family from being counted in EB cases. The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with him or her. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again.

Even an increase in the visa numbers in a reform proposal, which might seem adequate today, will again result in backlogs shortly based on the uncertainties with economic booms and busts as well as the varying size of families. An immigration system that does not count derivatives separately will have more of a chance to remain viable before Congress is again required to expand visa categories a few decades later. This will also go a long way in restoring balance and fairness to our immigration system. Sometimes even small things can cast a giant shadow.
Cyrus Mehta

The Status of Internet Proxy Marriages Under Immigration Law

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A recent article in the New York Times entitled You May Now Kiss the Computer Screen caught my interest.  The article highlights a rise in marriages over the internet, especially through a video chat program Skype, among immigrant communities. “The practice is so new that some immigration authorities said they were unaware it was happening and did not provide extra scrutiny to ensure these types of marriages were not being misused to secure citizenship,” the article states.

A “Skype marriage” takes place in another country where it is legally registered while the other party participates via video in the United States. If the marriage is considered legally valid in the foreign country, it will generally be recognized in the US. On the other hand, such a marriage is considered a proxy marriage, and under §101(a)(35) of the Immigration and Nationality Act (“INA”), if the parties were not in each other’s presence at a marriage ceremony, there must be proof of consummation for such a marriage to be recognized under immigration law. This is true even in the case of a couple who were previously married and had consummated their marriage through the birth of three children, and then divorced. They remarried through a proxy marriage that was valid in Italy, but since there was no proof of consummation following that marriage, the visa petition filed on behalf of the spouse was denied. See Matter of B-, 5 I&N Dec. 698 (BIA 1954).

Thus, internet marriages, even on the rise, will not be recognized under immigration law unless the parties establish that there was consummation. In addition, there is a requirement that every marriage, proxy or not, be bona fide and not be entered into solely to obtain a green card. Indeed, INA §204(c) imposed a lifetime bar to a new petition being approved on behalf of a beneficiary who was previously involved in marriage fraud.

The immigration authorities do not require definitive proof of consummation, and proof of the two parties being together physically after the celebration of their proxy marriage, along with a statement affirming consummation, ought to suffice. In fact, non-proxy marriages do not require consummation to satisfy the bona fide marriage test. In Matter of Peterson, 12 I&N Dec. 663 (BIA 1968), the fact that an elderly couple lived in separate bedrooms and had not engaged in sexual intercourse did not preclude the demonstration of a bona fide marriage. Also, a marriage would still be considered bona fide even though it is no longer viable because the couple have separated as a result of marital discord.  See Matter of McKee, 17 I&N Dec. 332 (BIA 1980).

The advent of increasingly sophisticated internet-based technologies have changed the way we live and work, and the law has yet to catch up. For example, telecommuting employees were unheard of before the internet, and I have commented on how existing H-1B visa rules defining a worksite have not been able to cope with this trend in LCAs in the Age of Telecommuting. Internet marriages are another example of this trend, and the couple in the NYT article, Ms. Chowdhury (who is in New York) and Mr. Ahmmed (who is in Bangladesh), notwithstanding the unconventional nature of the celebration appear to have entered into a bona fide marriage. The following extract from the article is worth noting:

But for Ms. Chowdhury, 21, and Mr. Ahmmed, 31, the giggling pair pretending to feed each other wedding dessert by holding forkfuls of cake to their computer screens that day, it felt full of the gravity of any other wedding. Ms. Chowdhury noted that her aunt had married similarly, long before the Internet age — by telephone. 

Peering from the screen of a laptop, Mr. Ahmmed agreed. “This is my lawful wife,” he said. 

At the last word, his bride squealed with joy. 

Even if one argues that a Skype marriage may have all the trappings of a marriage where the parties are physically in each other’s presence (and can also be intimate via video), it is doubtful whether Congress will be in a mood to change the law to make it easier for such marriages to be recognized for immigration purposes. There is too much of a concern for fraud, and such proxy marriages could also involve forced marriages of women and children without their consent. They could also be used by sex traffickers to bring in women who then unwittingly find themselves involved in sex work in the US.

Interestingly, the non-recognition of a proxy marriage helped someone to successfully claim he was a US citizen and avoid deportation. In Moussa v. INS, 302 F.3d 823 (8th Cir. 2009), the government commenced removal proceedings against Moussa based on several criminal convictions. Moussa, on the other hand, claimed he became a citizen at the time of his father’s naturalization and could not be deported as a US citizen. Moussa’s claim depended on whether his father was married to his non-citizen mother or not at the time of the father’s naturalization. Under old INA §321 which has since been repealed, both parents had to be citizens if they were married in order for Moussa to have become a US citizen. However, if his father was not married to his mother, Moussa could claim derivative citizenship through his father.  The government claimed that the parents were married as a result of a proxy marriage while Moussa’s mother was in Ethiopia and so he was not a citizen. The Eight Circuit Court of Appeals agreed with Moussa that such a marriage was not recognized under INA §101(a)(35) as the parents had not consummated the marriage before his father was naturalized and he was thus a citizen.  As a result, Moussa could not be deported for his criminal convictions.

So long as §101(a)(35) remains on the books, notwithstanding the rise of internet marriages, those wishing to seek an immigration benefit from such marriages must  first be able to demonstrate that they commenced marital relations after such a marriage. Even if such a marriage passes muster under §101(a)(35), unless the couple have started cohabiting together,  the immigration authorities are likely to look at such marriages more suspiciously in determining whether such a marriage is bona fide or not.

Cyrus Mehta

Wanted: Great STEM and Tandoori Chicken

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By Gary Endelman and Cyrus D. Mehta

There is no doubt that a Startup Visa would unleash amazing entrepreneurial activity in the United States, which would result in many jobs. The latest version of the Startup Visa Act 3.0 would provide 75,000 visas to individual who are already here in F-1 and H-1B status if their companies receive an investment of $100,000 per year and employ a minimum of two workers in the first year. A three year visa would be given to those who meet this condition. If within the three years, they employ an additional worker each year, they can apply for permanent residency.

According to a Kauffman Foundation study, the Startup Visa could conservatively lead to the creation of between 500,000 and 1.6 million jobs, which in turn could give a boost to the US economy of between $70 billion and $224 billion a year. A more optimistic estimate would result in 889,000 jobs and a boost to the economy of around $140 billion per year. Vivek Wadhwa, a big proponent of this bill, estimates an even bigger boost if half of these companies are engineering and technology companies. Many of these entrepreneurs, according to Wadhwa, will go on to build new companies based on their success, and could also develop breakthrough technologies and some of them could also be the next Google or Apple.

So if this is a no-brainer, why is Congress not passing the Startup Visa Act 3.0? The truth is that no standalone immigration bill will pass unless it is tied to a broader Comprehensive Immigration Reform bill. Indeed, there is an interesting debate between Wadhwa and Congressman Luis V. Gutierrez on this issue. Guiterrez, although he supports a Startup Visa, has openly admitted that he will not allow it to pass unless Congress is willing to reform the entire immigration system.  Wadhwa feels this is “political gamesmanship” on the part of Guiterrez, and that the Startup Visa can be passed first in order to give the American economy a big boot and this would lead to increased public acceptance for broader immigration reform. Guiterrez, on the other hand, feels that once he allows this to happen, it will be more difficult to pass comprehensive immigration reform.

The disagreement between Gutierrez and Wadhwa may be a false polarity. A nation needs both social justice and good economics; indeed, social justice is the best economics. A good example of the synergy between social justice and economics is Sergey Brin, who is the co-founder of Google. He came to the US with his parents at the age of six because they faced anti-Semitism in their native Russia. Although Brin graduated from Stanford in computer science, he did not come to the US on an H-1B visa or benefitted under any employment or investor visa category in our immigration system. His parents were able to come into the US based on an immigration program that was designed to protect foreign nationals from intolerance in their native countries. Still, Brin after coming to the US as a youngster was able to go on to found Google, considered one of America’s best and most innovative companies today.

Both Wadhwa and Guiterrez have a point. However powerful the stimulus flowing from the Start Up visa, enactment of Comprehensive Immigration Reform along with the Startup Visa would be infinitely more potent. Reforming a broken system, which includes legalizing the 10 million plus undocumented immigrants in the US, as well as providing quicker and more sensible pathways to legal status, could unleash even greater wealth. Immigrants of all stripes are essentially very entrepreneurial. An undocumented person who is provided legal status can also start a business and this individual need not be a STEM (Science, Technology, Engineering or Math) graduate. Even a non-technology company can create jobs such as a restaurant or grocery chain. Immigration should not be viewed as a zero sum game, and giving opportunities to foreign nationals in the US can result in more American jobs. Under our broken system, it is virtually impossible for an entrepreneur who wishes to start a North Indian cuisine restaurant to bring in a foreign national tandoori chef. A reformed immigration system should hopefully give this entrepreneur access to such a chef from India. A restaurant’s success is possible because of its chef, and when that great tandoori chef can be quickly hired from India, people will start coming to the restaurant resulting in the hiring of restaurant managers and waiters locally in the US. This restaurant’s success can then be replicated, and the entrepreneur can develop a branded chain of tandoori restaurants all over the US, resulting in many more jobs locally.

According to another report sponsored by Cato Institute – The Economic Benefits Of Comprehensive Immigration Reform by Raul Hinjosa-Ojeda, the legalization of 11 million immigrants would be equivalent to more than $1.5 trillion added to GDP over 10 years. The study considered the economic impact under three scenarios: a legalization program that would ultimately result in a pathway to citizenship, a temporary worker program with no option for permanent resident status and the deportation of undocumented immigrants. Hinjosa-Ojeda concludes that the legalization of undocumented immigrants would provide the most economic benefits to the US. On the other hand, removing undocumented immigrants would be most expensive, costing $2.6 trillion to the GDP over a 10 year period.

The debate between Wadhwa and Gutierrez can be put in a larger perspective. If you believe, as Wadhwa does, that the purpose of immigration is to create wealth, unleash creativity and foster productivity, then the focus should be on entrepreneurs and highly skilled professionals. This explains his approach. If, however, you are mainly concerned with social justice, then you argue for a more comprehensive approach which is what Gutierrez does. It comes down to what you think is most important and what you think has true moral legitimacy. For those who use immigration to bring about social justice, it is family not employment immigration that is morally legitimate. The focus is on using immigration to help the individual immigrant, reunite families, to fight intolerance, poverty and injustice. It is not to make American employers more competitive, and there’s also an impulse to protect US workers.  Wadhwa, on the other hand, sees an ethical value and legitimacy in work itself, in work as a creative expression of individual talent. He looks for new avenues especially in STEM fields to unleash creative potential within the culture and context of a capitalist economy.

The economic boom that an enlightened immigration policy would ignite is generational in its dimensions. The immediate benefit from the entrepreneurial energy of the immigrant generation would be transformed and expanded by the diversified talents of succeeding generations. The Tandoori cook of one generation is often followed by the cutting-edge geophysicist of the next. Precisely as the American economy itself is inherently dynamic, the role that immigrants play in it also constantly evolves. For this reason, the sharp contrast provided by Gutierrez and Wadhwa that seem so vivid now will, over time, fade into a more nuanced yet no less compelling portrait.  Gutierrez realizes that an enlightened immigration policy can only exist in a compassionate society where social mobility is a lubricant of national cohesiveness. Wadhwa appreciates that immigration is an asset to be maximized not a problem to be controlled. Like all transformational moments in American history, this is pre-eminently a time to try something new.

A month before signing the Emancipation Proclamation, Abraham Lincoln spoke to our issue in our time:

The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew. We must disenthrall ourselves, and then we shall save our country. 

Cyrus Mehta

THE BLOCKING OF AN ENTREPRENEUR: A BROKEN IMMIGRATION SYSTEM AT WORK

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3D printing technology is about to revolutionize the way we understand manufacturing, and the country that takes the lead in this new technology will be the winner ofwhat The Economist magazine has called the third industrial revolution. A state of the art hearing aid or a high tech component for a military jet can be designed through a computer and printed on an unattended 3D printer as a solid functioning object.

Yet, the US Customs and Border Protection on the Canadian border recently refused admission to a dual national Canadian/British entrepreneur JF Brandon who is part of a startup called D Shape – which has developed a large-scale 3D printer that will revolutionize the way architectural design is planned, and building constructions are executed. By simply pressing the “enter” key on the keypad D Shape gives the architect the possibility to make buildings directly, without intermediaries who can add interpretation and realization mistakes.

Although refused entry into the United States, Mr. Brandon participated in a panel discussion on February 13, 2012 at Brooklyn Law School in New York entitled Immigration Policy and Entrepreneurship: Challenges and Pathways for Startups. Thanks to technology that has now become so routine, he could participate through Skype from overseas, and told a riveted audience that he had been refused entry under a NAFTA TN visa to work for D Shape in New York, which is limited to certain occupational categories and applies to Canadian and Mexican citizens. For an individual who wishes to work in a business related field, the only TN occupational classification is “Management Consultant,” but the CBP official did not think Mr. Brandon would fall under this category as he would be more of a “Manager,” which is not a TN classification. Although he will try again for a TN visa, the H-1B visa category is more obvious,  which allows one to work in many more professional fields, but there are no H-1B visa numbers left for this fiscal year. If he applies for one, he will have to wait until October 1, 2013 to get in, and that too if he is lucky enough to get selected in the event that the USCIS receives more than the allotted 65,000 H-1B visas during the first week April 2013 – the first month when employers can file H-1B visas for an effective start date of October 1, 2013.  Other than the H-1B visa, there are few options for enterprising foreign entrepreneurs. The O-1 visa is limited to foreign nationals who can demonstrate extraordinary ability in their fields through sustained national or international acclaim. The L-1 visa is available to intra-company executives, managers or specialized knowledge employees who have been working for an affiliated overseas company for one year in the same capacities. The E-2 visa, applies to nationals of a few countries that have as treaty with the US (and Canada is one of them), but it requires the entrepreneur to make a substantial investment.

I was honored to be on the distinguished panel last week, along with Jeremy Robbins who is Director of the Partnership for a New American Economy and Special Advisor to Mayor Bloomberg, Michael Wildes, Partner of Wildes and Weinberg PC and Owen Davis, Venture Capitalist, Director of NYC Seed.  The moderator was Professor Jonathan Askin, who is the Director of the innovative Brooklyn Law Incubator Policy Clinic, which also sponsored the program along with New York Legal Hackers. Apart from the wonderful ambience and engaging audience –and there was jazz at the beginning and end of the program – the panelists generallypainted a grim picture of the visa options available to foreign entrepreneurs who wish to develop startups in the US. Indeed, Mr. Davis said that NYC Seed would be reluctant to fund foreign national entrepreneurs due to the inherent risks and uncertainties caused by the immigration system. Mr. Wildes described the many immigration options that exist in the US immigration system, but then qualified that it would be very difficult for an entrepreneur to take advantage of them. Under the H-1B visa program, for example, the USCIS insists on the need to show that the H-1B worker’s employment will be controlled by the employer, which will be difficult in the case of startup owned by the foreign national. This obstacle is in addition to the fact that H-1B visa numbers run out even before the start of the fiscal year. Even the E-2 visa is limited to nationals of treaty countries, according to Wildes, which does not include any of the dynamic BRIC (Brazil, Russia, India and China) countries.  I pointed out that there may be new hope, even amidst the bureaucratic “culture of no” mindset, in the USCIS’s new Entrepreneurs in Residence Initiative, where immigration officers have been trained to recognize the unique nature of startups, such as operating in stealth mode or not having an established office space. Control of employment may also be shown in other ways, through the need to maintain a separate existence between the corporation and the shareholder, as well as the possibility of minority shareholders exercising control through shareholding agreements or through their latent power to seek dissolution based on egregious conduct by the majority shareholders.  Mr. Robbins highlighted the political realities, which means that a new Startup Visa will only be enacted be when Congress rolls out a Comprehensive Immigration Reform bill.  Despite the importance of foreign entrepreneurs, and the fact that America knows best how to nurture entrepreneurship, there is little chance of a Startup Visa Act in the absence of Comprehensive Immigration Reform.

The take away from this program is that we clearly need Congress to create a Startup Visa rather than entrepreneurs using existing visas that were not designed for them, but those legislative proposals will flounder unless they are included in a Comprehensive Immigration Reform (CIR) bill.  One version of a Startup Visa would require the entrepreneur to invest a minimum of $100,000 in order to get a two year green card. To keep the green card past two years, the founder would need to create five jobs and either raise at least $500,000 in additional funding or $500,000 in revenues. Even if Congress enacted a Startup Visa, these requirements could be rather burdensome for a nimble entrepreneur who could still launch a successful business without an initial $100,000 investment. Thus, a CIR proposal can also tweak some of the existing visa categories to make it easier for founders to remain in the US as nonimmigrants and provide alternative pathways, such as by relaxing the element of control in the H-1B visa and also allowing a majority shareholder to be sponsored for a green card through the labor certification program. The well-intended guidance for entrepreneurs under existing visa categories should also be part of reform legislation rather than remain as mere guidelines that run the risk of not being followed by an immigration officer.  Otherwise, we will have initiatives like Blueseed, which envisages a ship in international waters off Silicon Valley that will serve as an incubator for foreign entrepreneurs to develop their startups without needing to get a US visa. They can visit shore briefly on a B-1 business visa for meetings, and then return to the ship to work at their startup. To add to the uniqueness of the entrepreneur and immigration program in Brooklyn, the founder of Blueseed, Dario Mutabdzija, also participated through Skype. I have a feeling that Blueseed will succeed even if we have CIR as there will always be entrepreneurs who may not be able to take advantage of onerous visa options in the early stages of the startup.

Finally, from my experience as a practitioner, I have seen that immigrants from all backgrounds can become entrepreneurs, and it is not necessary that only graduates from STEM (Science, Technology, Engineering and Math) programs will succeed with startups. A lesser educated immigrant with burning ambition, such as a cook, can one day start a restaurant chain just as a Ph.D in Engineering can develop the next generation 3D printer.  Both create more jobs – and America could also enjoy more cultural diversity through the businesses of foreign entrepreneurs.As I recently tweeted on Twitter, “We need both brilliant STEM and delectable tandoori chicken in America.” Thus, if the political reality is to include startup visa options in CIR, let’s bring it on sooner than later so that American will be able to benefit from the talents of foreign entrepreneurs of all backgrounds and stripes.