Tag Archive for: S. 744

Cyrus Mehta

The Lazarus Effect: How Comprehensive Immigration Reform Can Survive The House GOP and Come Back to Life

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By Gary Endelmanand Cyrus D. Mehta

“The only true test of leadership is the ability to lead and lead vigorously”

President John F. Kennedy

The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.

This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the 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.

Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections.  What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.

The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members.  It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party.  First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border (which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small.  It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.

This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways.  It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.

While the authors support the passage of  S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN.  Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or  dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.

The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of  all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized)  may not be such a bad thing.

The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.).  Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined.

The President cannot grant more L-1 intra-company transferee visas but he can restore the relevancy of those that now exist by ending the war on claims of specialized knowledge. No new allowances for extraordinary ability can come through the stroke of a pen but an enlightened decision to banish the suffocating Kazarian final merits determination would give new hope to aliens who now have none but otherwise satisfy what the law requires.  Only Congress can exempt green card categories from the tender mercies of PERM but no legislative sanction is required to halt the use of audits as a tool of intimidation. The need for change should not blind us to the ample opportunities for remediation that the present law affords.  As valuable as comprehensive reform is, as badly needed as the benefits it will bring most surely are, no law will succeed if those who enforce and interpret it lack the moral courage and political will to usher in a newer world. As that fan of Tudor prerogative told us long ago in no less contentious times, “the fault dear Brutus is not in our stars but in ourselves.”

(Guest author Gary Endelman is Senior Counsel at FosterQuan)

Cyrus Mehta

AN IMMIGRATION ATTORNEY’S RESPONSE TO STATEMENT OF USCIS UNION PRESIDENT OPPOSING SENATE IMMIGRATION BILL, S. 744

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Kenneth Palinkas, President of the National Citizenship and Immigration Services Council, the union representing 12,000 United States Citizenship and Immigration Services (USCIS) adjudications officers and staff, issued a statement joining a vocal minority of other government union bosses, most notably Chris Crane of the ICE employee union, opposing the Senate immigration bill, S. 744.

Mr. Palinkas’ statementfunnily reminds me of a Request for Evidence (RFE) that the USCIS routinely issues after it receives an application for an immigration benefit. An RFE typically lists the many real and phantom concerns that the USCIS may have about an application, which this statement does too.  I will attempt to respond to Mr. Palinkas’ statement like one would respond to an RFE, first repeating the concerns of the USCIS in bold followed by my response:

USCIS adjudications officers are pressured to rubber stamp applications instead of conducting diligent case review and investigation. The culture at USCIS encourages all applications to be approved, discouraging proper investigation into red flags and discouraging the denial of applications. USCIS has been turned into an “approval machine.” 

Really! We attorneys always thought that there was a “Culture of No” at the USCIS. I scratch my eyes with disbelief when you say that USCIS has been turned into an “approval machine.” How I wish there was some resemblance to what you say and what we actually experience in our day to day practice.

But seriously, what about all the H-1B and L-1 petitions that are filed, which receive an RFE of several pages, asking for the kitchen sink, even when the occupation is readily a specialty occupation or the position is managerial? Even after we respond with  triple or quadruple the number of pages contained in the RFE (and much longer than the instant response), your officers often deny the petition with a cursory denial. What “approval machine,” Mr. Palinkas, are you talking about?

Actually, whether you like it or not, Congress did indeed make USICS an “approval machine.”  Your mandate is to grant the benefit whenever the eligibility requirements are met through a preponderance of the evidence standard. Congress created certain visas and green card categories because it believed that they would benefit the country. So a culturally unique folk singer should be granted the P-3 visa if she qualifies for it and the manager of a new startup office could also be granted the L-1A visa.  Please do not have any qualms in approving an application if it is deserved under the law, without factoring your own biases in the decision process such as the sluggishness in the economy or the national origin of the beneficiary. That is not your job. In fact, USCIS examiners should look to approving applications after carefully examining the evidence within the legal framework, which many of them do. It is they who are doing a good job!

 

USCIS has created an almost insurmountable bureaucracy which often prevents USCIS adjudications officers from contacting and coordinating with ICE agents and officers in cases that should have their involvement. USICS officers are pressured to approve visa applications for many individuals ICE agents have determined should be placed into deportation proceedings.

Mr. Palinkas, you may not be aware of this interesting paradox in our nation’s immigration laws. One may still be authorized to remain in the United States even though technically deportable.

ICE would probably determine that just about every beneficiary of a visa petition, such as an H-1B petition, who has applied timely for an extension, is deportable during the pendency of the extension request. Still, under 8 CFR 274a.12(b)(2), such a person is  authorized to continue working for the same employer for up to 240 days. Also, a spouse who has applied for adjustment of status based on a marriage petition filed by her US citizen spouse, according to ICE, is technically deportable while the adjustment of status application is pending. This person too is allowed to remain and work in the US while waiting for the green card during the pendency of the adjustment of status application even though the underlying visa has expired.

Does this mean that you would request ICE to start deportation proceedings whenever you are asked to adjudicate a visa extension request and not do your job? Your job, again, as mandated by Congress, is to approve these applications if they qualify under law. In the event that ICE places such hapless aliens in removal proceedings, an Immigration Judge will most likely terminate or administratively close such proceedings, and you will have to continue to adjudicate such cases. Indeed, this will waste more tax dollars than what you complain of below regarding fee waivers.

USCIS officers who identify illegal aliens that, in accordance with law should be placed into immigration proceedings before a federal judge, are prevented from exercising their authority and responsibility to issue Notices To appear (NTAs). In the rare case that an officer attempts to issue an NTA, it must first be approved by a secretive panel created under DHS Secretary Janet Napolitano, which often denies the officer’s request. Illegal aliens are then permitted to remain in the United States as USCIS officers are not able to take action or contact ICE agents for assistance.  

Please carefully review the USCIS NTA Policy Memo dated November 7, 2011, which still gives you considerable authority to issue NTAs, such as when you deny a Form I-751 application to remove the conditions on residence or when you do not approve an asylum case and have to refer it to an Immigration Judge. Consistent with the policy on prosecutorial discretion, which promotes the sound use of limited resources, you are still required to issue NTAs when you see a fraud case, or cases involving non-citizens with criminal convictions or where there is a national security concern. So what’s all the fuss about? You still have plenty to do if you want to put non-citizens in removal proceedings even if your mandate by Congress is to grant benefit applications. I suggest you stay focused and  adjudicate applications, and let others worry about putting folks in removal proceedings.

The attitude of USCIS management is not that the Agency serves the American public or the laws of the United States, or public safety and national security, but instead the agency serves illegal aliens and the attorneys which represent them. While we believe in treating all people with respect, we are concerned that this agency tasked with such a vital security mission is too greatly influenced by special interest groups – to the point that it no longer properly performs its mission. 

Why do you focus so much on “illegal aliens?” I thought the USCIS is required to adjudicate applications so that people may come to the US legally. If you do your job properly, there will be more people in legal status in the US. Nowadays, when you carelessly deny an H-1B extension request that you granted many times before, you place this individual and her family in jeopardy.  All of the petitions that you receive from employers for H-1B visa, L visas or O visas, just to name a few, are for folks who will enter the US legally and who will also clearly benefit our country.

Moreover, an alien has a right to be represented by an attorney when filing an application for a visa benefit, and so I would suggest that you refrain from calling us “special interest groups.” We as attorneys under ABA Model Rule 3.3 and 4.1 are required to file truthful applications on behalf of our clients, along with many other DHS rules at 8 CFR 1003.102 that can sanction improper attorney conduct. Attorneys are required to ethically represent clients, who are applicants applying for immigration benefits, that you must serve efficiently under your Congressional mandate. Indeed, most of the times, attorneys representing applicants and the USCIS can be on the same side, developing interpretations of the law that would be consistent with Congressional intent and facilitate consistent adjudications.  It is a win-win situation for everyone, including the American public, if we can work cooperatively with you!

Currently, USCIS reports a 99.5% approval rate for all illegal alien applications for legal status filed under the Obama Administration’s new deferred action for childhood arrivals (DACA) policies. DHS and USCIS leadership has intentionally established an application process for DACA applicants that bypasses traditional in-person investigatory interviews with trained USCIS adjudications officers. These practices were put in place to stop proper screening and enforcement, and guarantee that applications will be rubber-stamped for approval, a practice that virtually guarantees widespread fraud and places public safety at risk.

DACA is the model of an efficiently run USCIS program that is worthy of emulation and replication. There are many USCIS applications procedures that bypass the traditional interview process. Also, if there is an issue, there is nothing to stop the USCIS from inviting the applicant for an interview. You also have your FDNS folks do as much snooping around to their hearts content without regard to counsel being present  Moreover, most DACA applicants can establish their presence in the US through school records and other concrete proof, such as bank statements and even through their Facebook profiles, which could facilitate swift approval.

While illegal aliens applying for legal status under DACA policies are required to pay fees, DHS and USCIS are now exercising their discretion to waive those fees. Undoubtedly these practices will be replicated for millions of illegal aliens if S. 744 becomes law.

I thought there is a regulation at 8 CFR 103.7(c), which allows the DHS to waive fees if an applicant can demonstrate an inability to pay based on stringent criteria. There’s also statutory authority at INA 286(m).  As the head of a union, you are probably going beyond the scope of your position to challenge a regulation that was properly promulgated under the Administrative Procedures Act and the INA. How does a rule legitimately allowing fee waivers for a narrow class of individuals affect the working conditions of your employees in the union? Let’s move on to the next concern in the RFE!

US taxpayers are currently tasked with absorbing the cost of over $200 million worth of fee waivers bestowed on applicants for naturalization during the fiscal year. This is in addition to the strain put on our Social Security system that has been depleted by an onslaught of refugees receiving SSI benefits as soon as their feet touch US soil.

There you go again about fee waivers legitimately applied for under 8 CFR 103.7(c). You gripe about $200 million, but you forget about the immense contributions made by immigrants by way of taxes, purchasing power as consumers, and as entrepreneurs through job creating businesses.  By the way, one of the founders of Google, Sergey Brin, came to the US with his parents at the age of six because they faced anti-Semitism in their native Russia. Yet, you deride refugees who have escaped persecution and legitimately come to the US pursuant to the Refugee Act of 1980 based on the U.N. Convention Relating to the Status of Refugees.  I wonder whether you speak on behalf to the many dedicated USCIS officers who painstakingly determine whether an applicant qualifies for asylum or as a refugee under our obligations under the UN Convention. Do you also forget that America was built since its very inception and made great by people who escaped persecution from other countries? Have you lost sight of our most cherished and enduring symbol that  gave hope to millions when they landed on our shore – the Statue of Liberty?

According to a Kauffman Foundation study, the Startup Visa in S. 744, the bill which you oppose,  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. 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. Yet you gripe about $200 million.

Large swaths of the Immigration and Nationality Act (INA) are not effectively enforced for legal immigrants and visa holders, including laws regarding public charges as well as many other provisions, as USCIS lacks resources to adequately screen and scrutinize legal immigrants and non-immigrants seeming status adjustment. There is also insufficient screening and monitoring of student visas.

There are thousands of dedicated USCIS examiners who carry out their duties diligently and thoroughly when adjudicating adjustment of status applications. If there is a properly executed Affidavit of Support pursuant to INA 213A, the examiner need not go further under the law. Congress has allowed agencies to sue the sponsor who has executed such an affidavit in the event that the alien seeks welfare benefits. Your allegation that students are not sufficiently monitored is shorn of any basis. What about STEM students whom we want to remain here and who can contribute to US competitiveness and innovation?

A new USCIS computer system to screen applications known as “Transformation” has proven to be a disaster as the agency has spent upwards of $2 billion for a system that would eventually allow an alien – now referred to as a “customer” under current USCIS policy – to upload their own information visa the internet for adjudication purposes. To date, only one form can be accepted into the program that has been in the making for close to 10 years.

If the USCIS were to hire some crackerjack H-1B computer programmers, those same people whose applications you like denying, I think there will be “transformation” in less than 10 months! Finally, and in closing, would you not agree that “customer” is a more dignified term than “alien”?

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.