Family Preparedness for Immigration Riads / Preparación Familiar para Invasiones Migratorias

Oregon based non-profits have created these tools to prepare your family in case of immigration raids: Family Preparedness Guide in English

Organizaciones sin fines de lucro en Oregon han creado estas herramientas para preparar su familia en caso de invasiones migratorias: Guía de Preparación Familiar en Español

H-1B Reform - Quantitative or Qualitative?

With recent campaign rhetoric and a new administration, H-1B reform is once again in the headlines.  Reform is surely needed.  But what type of reform?

The H-1B Cap and Lottery

There were 236,000 petitions filed for H-1B status in April 2016 for only 85,000 H-1B numbers, and USCIS ran a lottery to decide who would get an H-1B with an October 2016 start date.  The lottery distribution itself has been challenged in court as unlawful in the case of Tenrec, Inc. v. USCIS.  That case argues the statute specifies the distribution be "in the order in which a petition is filed" and not randomly.  But whether the agency distributes the visas in a lottery, or in a wait list fashion (first-in first-out), capping the category per year means that there will be a wait to get a number, because those who lose the lottery in successive years are in a de facto waiting line.  Many have entered for three years without a number - that's a wait.  As I have argued before, first-come first-served approach is more fair than a lottery system, with those filing earlier receiving visas earlier.  Running a lottery just allows some to cut ahead in line.  It also allows big companies to file massive numbers of petitions in order to increase their odds.  The case to abolish the lottery distribution process is under advisement before a federal judge and could be decided any day now.

The 85,000 H-1B cap is a quantitative restriction that hampers competitiveness and leads to abuse of U.S. workers.  To be fair, some who are eligible for an H-1B are exempt from the caps.  There are Canadian and Mexican professionals who can utilize NAFTA, and Australians who can use the E-3.  Multi-national companies can utilize the un-capped L-1 visa for managers, executives, and those with specialized knowledge.  Institutions of Higher Education, and non-profit or government research organizations are exempt from the H-1B cap, and can petition for an H-1B employee at any time without regard to the caps.  There are even private entities which can employ someone under exempt status if they are working principally for an exempt employer, or where there is a close affiliation (such as shared board of directors) between the for-profit and exempt entity.  The 65,000 cap set back in 1990 has only been increased, however, by 20,000 by allowing that many who have U.S. Master's degrees to be issued a number.  Unless one of the special exemptions applies, therefore, a U.S. company is prohibited from hiring the global talent they would like.

As a private citizen who reads the news, I have been dismayed to read of the alleged abuses of the H-1B system by companies like Disney and others.  No one should have to train their replacement who is on a non-immigrant visa.  As an immigration attorney, I have seen amazing contributions to businesses by professionals on H-1B visas.  My experience, over the past 20 years (ok, 4 months short of 20 years) of immigration practice, has been that companies hire H-1B workers for those positions which are tough to fill, and that companies end up paying more for an H-1B worker than a U.S. worker.  I represent a wide range of industries including manufacturing, civil and environmental engineering, renewable energy, health sciences, biomedical engineering, and information technology.  In order to maintain global competitiveness, U.S. businesses need to be able to tap the global talent pool.  So the numerical caps definitely get in the way of domestic enterprises being competitive in the global market.  So, is capping the category the best way to deal with abuses?  I firmly believe the caps are not the right tool.

Prior to 1990, there was no cap on H-1B petitions.  Instead, the pre-1990 Immigraiton Law required the H-1B beneficiary to show they were a person of "distinguished merit and ability" coming to "perform services of an exceptional nature."  That was a qualitative limitation, not a quantitative one.  In fact, right now, Congress is discussing qualitative limitations on the type of H-1B workers that are permitted to work in U.S. industry.  

For perspective, the U.S. currently has around 159 million workers in the workforce.  Even if the entire non-immigrant workforce, including H, L, E, O and other visas is in the few hundred thousand level, that is only a fraction of one percent of the U.S. workforce.  While the current system has permitted abuse of the H-1B program to occur in some instances, it is hard to believe that such a small fraction of the U.S. workforce could really impact U.S. workers employment opportunities in a meaningful way.  That is not to say there are some who have lost their jobs to H-1B workers.  I merely point out that the sheer numbers preclude any kind of huge impact on those who are looking for work.  In fact, those U.S. citizen men who are playing hours of video games each day (perhaps millions) instead of looking for work has a much higher impact on the economy than H-1B visas.

Salaries and Prevailing Wages

Salaries of H-1B workers and prevailing wage rates are being discussed in Congress now as a qualitative limitation on the H-1B category.  In my experience, most of my clients are paying in the 90th percentile of wages, which represents "Level IV" wages which is the highest level of the four tier prevailing wage system.  If you'd like to see what prevailing wages are in a given area, broken down by occupation and location within the country, you can visit the FLCDataCenter website.  Those rates are researched and updated each year, and published there by the Department of Labor for use in the Labor Condition Application (LCA) that is required in H-1B petitions.  Level IV wages are extremely high, representing the highest mean wages in the occupational category.  An H-1B employer must pay prevailing wages even if they pay U.S. citizens less, as the requirement is to pay the higher of the prevailing wage or wage paid to similarly employed U.S. citizens.

One proposal in Congress is to raise the minimum salary level to $100,000.  That kind of across the board minimum does not work when taking into consideration the myriad of occupations, and the differences in cost of living (and thus salaries) of different parts of the country.  If Congress is intent on making salary a qualitative limitation on the H-1B category, it would be better to link it to a certain wage level within the DOL prevailing wage rates.  But doing so would make it virtually impossible for a company to hire a recent graduate, for example.  It would also make it harder for smaller companies, or start ups, to get the talent they need.

Recent Graduates

What to do about recent graduates from U.S. universities who are foreign students and require H-1B visa sponsorship to work in the United States?  Do we tell them to get out of the country after they've spent tens or hundreds of thousands for a U.S. education?  If we do so, we lose talent we need.  Increasing the minimum salary to a Level III or Level IV as a qualitative restriction would likely make it difficult for any recent graduate from a U.S. university to get a job under the H-1B.  Considering the fact that U.S. universities gain considerable income from foreign student tuition, and that many U.S. educated foreign students have gone on to start amazing companies employing droves of U.S. citizens, it would seem like we are shooting ourselves in the foot by turning away promising foreign graduates.  Yet opponents of H-1B visas may very well point to lost opportunities for recent U.S. citizen college graduates.  How can we balance the need to utilize talent from within U.S. universities, and ensure that qualified U.S. citizens don't get passed over?  A salary floor won't do that.

The STEM OPT program permits an F-1 student who has a degree in Science, Technology, Engineering or Math to obtain Optional Practical Training for a period of 36 months following graduation.  A solution to enable the United States to keep the best and brightest of our U.S. educated students would be to expand the STEM OPT program by allowing all degree fields to be eligible, but require the payment of at least Level II wages.  This represents a compromise which will ensure a transition period for U.S. graduates, increase the chance we will still have international students wanting to come and pay foreign student tuition at our colleges and universities, and protect opportunities for U.S. graduates by a prevailing wage requirement combined with a short period before the F-1 OPT recipient needs to comply with the stricter qualitative H-1B requirements.

Small Companies and Start Ups

Implementing a salary floor as a qualitative restriction is going to negatively impact small companies and start up enterprises.  Congress should consider providing an exemption from a salary floor or any quantitative (cap) restrictions for a certain small percentage of the company's workforce.  For example, if a company were to be given an allotment of up to 3 employees or 5% of their FTE employee total, whichever was greater, that would allow companies to supplement their workforce with global talent in a small proportion to their overall employee count.  It is hard to see how such a small percentage of H-1B workers, relative to the overall workforce, would negatively impact wages or working conditions.  

My Recommendation

If H-1B reform were left up to me, I would consider the following immediately:

  • Eliminate the H-1B numerical cap (a quantitative restriction) entirely;
  • Institute a salary floor at the Level IV wage level or above, per DOL prevailing wages, as a general rule for H-1B petitions;
  • Institute an F-1 student OPT program of 36 months with a salary floor at the Level II wage level or above, and remove the restriction on degree field;
  • Create an exemption from the Level IV wage level requirement for any petition which is filed by an employer which does not have more than 5% of full time employees in H-1B status (or more than 3 employees for a very small employer), but still require as per current law, the payment of prevailing wages based on the four levels currently available.

The above system would require high wages for companies which employ a large percentage of employees in the H-1B system.  It would also recognize that U.S. companies need to employ a certain level of global talent to remain competitive in the international marketplace.  If a company wants to employ more than a small percentage of their workforce, they'll have to pay more for it.

AILA Message on Presidential Campaign Result

A New Challenge for AILA and the Communities We Serve

 

We woke up this morning to the news most of us did not expect and many of our clients feared: after one of the most divisive campaigns in modern history that included statements maligning immigrants from Mexico and scapegoating Muslim-Americans, a call for mass deportations and the end of DACA, and a speech in Arizona presenting a wish list of restrictionist policy proposals, Donald Trump has won the election and will become the 45th president of the United States.  

All of us are facing calls from anxious clients: from DACA recipients whose hopes for a life with legal status for themselves and their families in the United States appear to be dimming, from relatives who fear their family members may be removed or forever barred from coming, from business leaders who are less confident that America’s immigration system will support economic growth, and from employees on work visas who fear losing all they have built in the United States.  We must remember that whatever personal anxieties we may have about what the next few years will bring are dwarfed by the fears and anxieties of our clients and the immigrant population.

For more than 70 years, AILA members have stood alongside our clients, helping them realize the American dream. We are their advocates and their voice, helping them through the tough times.  We have been here before: in the McCarthy era, when even a whisper of sympathy to the Communist cause could derail an immigrant’s life in the United States; in 1996 and the years that followed, when the Illegal Immigration Reform and Immigrant Responsibility Act wreaked havoc on our nation with severe penalties that had retroactive effect, and jurisdiction stripping provisions that severely curtailed federal court review; and in the dark days after September 11, when we found ourselves up against unexplained adjudication delays, detention without due process, and trials based on secret evidence.  Through it all, AILA members have worked tirelessly to secure fairness and justice for those in immigration proceedings of every kind.  And this time is no different. AILA will continue to fight for a just and fair system using every tool at our disposal.  

It is important to remember, as we look forward to an uncertain future, that we have invaluable and unlimited resources at our disposal: the talents, ingenuity, passion, legal acumen, and persistence of our fellow AILA members. Looking forward, we must continue to support one another as we always have, by coming together for inspiration, to share war stories, and to take every opportunity that we can find to advocate for fair and just treatment for immigrants. Together we must carry this message of unity and perseverance to the immigration agencies, to Congress, and to the courts.

We look forward to meeting these challenges together with all of you.

Benjamin Johnson, AILA Executive Director

 

TSI Alternative Now that Supreme Court Halts DAPA

Today the Supreme Court upheld the denial of the DAPA program in a split, 4 to 4 tie decision, issuing only a one sentence ruling, "The judgment is affirmed by an equally divided Court."  That means that DAPA (and also expanded DACA) will not go into effect.  The current DACA program remains unaffected, however, and will continue.

With the nation's highest court ruling effectively that DAPA cannot proceed, it is now time for the administration to consider implementing an alternative, which I proposed last year, which would also lead to work permits being issued to parents of american citizens with a long residence in the United States.  The alternative is the "Turn Self in for Deportation" alternative, and it is linked to a different executive power than the DACA program, and one that is less likely to fail in court like the DAPA program.  The alternative is founded on current law, the "cancellation of removal" statute, and the power of the executive branch to "commence proceedings, adjudicate cases, or execute removal orders" without judicial review.  The alternative, in short, requires the administration to allow the individuals who have been here for 10 years and who have a U.S. citizen or permanent resident child, spouse or parent to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application and work permit application, then Administratively Close their case so it gets out of the streamline of pending cases.

Because of the importance of this issue, I will reproduce the original blog post below in order to describe how such an alternative can work under existing law and be immune from judicial intervention.

The White House has another option to defer deportation and grant work permission for low priority undocumented immigrants - a Turn Self In for Deportation program.

How would that work?  The answer lies in the laws that Congress passed in 1996.  If a person in the United States without authorization can show 1) 10 years of continuous physical presence in the U.S. (with allowances for breaks of 90 days or less if totaling 180 days or less), 2) good moral character, 3) a lack of conviction for certain crimes, and 4) establishes that their removal would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident, then that person can apply for a green card from an immigration judge, and have their deportation cancelled.  The law is 8 U.S.C. 1229(b) and it is called "Cancellation of Removal."  Yep, Congress said that if you have been here a long time and deportation would work a hardship on your kids, then you should be able to stay here as a lawful permanent resident.  That's the law.

It is probably no coincidence, therefore, that the DAPA program was established for otherwise law abiding individuals who have been here a number of years and are parents of American citizens.  If the government were to put all the estimated 4 million individuals who might qualify for DAPA into removal proceedings, a large portion of them would likely qualify for Cancellation of Removal, and would be entitled to a trial where they could prove the elements of the Cancellation of Removal claim.  This would completely cripple the removal system and prevent the removal of more dangerous individuals.  According to a Wall Street Journal Article, removal hearings are now being set 5 years into the future due to an already long backlog of cases waiting to be heard.  With 230 immigration judges around the country already handling 375,000 cases per year, the system is at the absolute limit. Add 4 million more to the list of pending cases, including mostly those with Cancellation of Removal claims (requiring more court time to handle than many other cases), and hearing dates could be set not 5 years away, but 50 or 100 years in the future.  Add to that the annual limit on 4,000 grants of Cancellation of Removal, and meritorious cases would be pending for 1,000 years.

So how would a Turn Self In for Deportation program work in place of DAPA?  The Obama Administration could allow the portion of DAPA eligible individuals who had the required 10 years in the country to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application, then Administratively Close their case so it gets out of the streamline of pending cases.  In the old days, the predecessor to the NTA, the Order to Show Cause (OSC) could be requested by walking an out-of-status client into investigations and having them written up.  This was done to seek relief before an immigration judge.  At some point the agency decided to limit the issuance of charging documents to cases they thought they could win.  But DHS could certainly allow the old process to operate again, and could certainly direct the Office of Chief Counsel to join in motions to Administratively Close all cases in which the person was eligible for Cancellation of Removal and who also requested such administrative closure.  This process would enable the individual to apply for a work permit, just the same result as if they had applied for DAPA.  By allowing the cases to be Administratively Closed, the system would not be crippled, and removal proceedings involving individuals with serious criminal convictions could proceed.  

So why don't more people just Turn Self In for Deportation?  That is because Immigration and Customs Enforcement (ICE) has no process to allow for this.  That's right - unless you are a priority for removal, ICE will not usually place a person in removal proceedings by issuing an NTA unless that person is a priority for removal, which at this time involves only people apprehended at the border or those arrested for crimes, and not all those otherwise law abiding individuals who may have Cancellation of Removal.  Some individuals have filed asylum applications in order to be placed in removal proceedings, because denial of asylum leads automatically to an NTA being issued and the individual being placed in removal.  The NTA filing, in turn, allows them to apply for Cancellation of Removal and a work permit, but the process is not without risk outside of an organized system as reported by the New York Daily News.  So, because of the risk of deportation, and the fact that no Turn Self In for Deportation program exists, few of the otherwise law abiding 4 million are in removal proceedings, and cannot therefore apply for Cancellation of Removal.  These are the truly "undocumented" because they are eligible for legalization but cannot apply for it unless they are in removal proceedings, and they aren't likely to get there because they are not committing crimes.

A Turn Self In (TSI) for Deportation program would also be even more shielded from judicial review than the DAPA program, because Congress has enacted laws (namely 8 U.S.C. 1252(g)) to completely insulate the decision to commence removal proceedings against someone from judicial review.  When this post was originally drafted in February 2015, a few scholars commented that the TSI program would be subject to the same problems as the DAPA program in terms of jurisdiction to review in the courts.  Not so, in my opinion.  As the Fifth Circuit held last year (and upheld by the Supreme Court today), "DAPA amounts to the Secretary's decision - at least temporarily - not to enforce the immigration laws as to a class of what he deems to be low priority aliens.  If that were all DAPA involved, we would have a different case."  Slip Op., p. 23-24.  The Court also held, "Unlike the claim in AAADC, the states' procedural claim does not involve a challenge to the Secretary's decision to 'decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,' nor does deferred action pursuant to DAPA mean merely that 'no action will thereafter be taken to proceed against an apparently deportable alien.'"  Slip Op., p. 25-26.  The statute, 8 U.S.C. 1252(g), states that "...no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General [now DHS Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act."  Because issuing an NTA to someone is an act to commence proceedings, it is immune from judicial review, unlike DAPA.  The decision to join in a motion to administratively close a case is arguably not within the jurisdictional protections of 1252(g), but if the agency were to have issued and filed several million NTAs in immigration court, it would be hard to imagine a court which would not allow the officials in charge of managing their dockets the discretion to join in admin closure motions to enable the orderly prioritization of the removal process.  If millions of cases were not administratively closed, it would result in the whole system grinding to a halt, and massive multi-decades waits for court hearings.  Also, the issuance of work permits is a separate process from the issuance of the NTA and the person's own application before the court for cancellation.  So DHS isn't really responsible for that, it is just part of how the system already works.  How could a court find any reason to stop a process that Congress itself enacted?

Now that the DAPA program has been halted by the nation's highest court,  the Obama Administration could consider allowing people to turn themselves in and issuing NTAs to several million of the DAPA eligible group who have been here at least 10 years.  As stated above, the commencement of removal proceedings is entirely beyond the jurisdiction of the courts to interfere with.  Upon filing all those millions of NTAs with the Immigration Court, the Administration could then decide to implement an orderly policy to Administratively Close them (since keeping them in the system would crash it) and allow the system that Congress established to issue the group work permits.  

A far better solution, however, would be for lawmakers to recognize that deporting parents of American citizens who have lived here for many years is not a practical strategy, setting aside for a moment even the humanitarian concerns, and work together in bipartisan fashion to come up with a logical and workable immigration system that takes this group out of the cross hairs of the deportation system.  Until that time comes, however, the Administration must come up with strategies to enforce the immigration laws in a smart way, including separating out those who should not be taking up our limited removal system resources by allowing them to provide proof of their low priority status.  In order to encourage people to come out of the shadows and become pre-identified as low priority for removal, the Administration must give some benefit - work authorization - for such a program to work.  

The parents of Americans with lengthy U.S. residence should be allowed the decision to document themselves as low priority by requesting an NTA, and after filing a cancellation application, be issued work permits.

H-1B Lawsuit Demands Place in Line

A place in line, not a rejection based on a computerized lottery, is what employers and employees are seeking in a soon-to-be-filed class action lawsuit challenging the H-1B lottery process.  Unlike the lottery, however, there is no need to cross your fingers on this filing, as the law is as plain as a pikestaff.  A lottery process for H-1B quota distribution is not authorized by law.  Instead, the law states H-1B numbers are to be provided based on filing date order.  The reasons that the H-1B lottery is illegal are outlined in our earlier BLOG and PODCAST.  The DRAFT LAWSUIT (in the form of the motion for summary judgment) is now available for review for the first time, before it is filed with the federal courts.  The lawsuit seeks the opportunity to resubmit rejected H-1B petitions and receive a priority date and place in line for future available H-1B numbers, so that rejected petitioners and beneficiaries do not have to endure another random lottery.  H-1B lottery victims may register their contact information on the H-1B LOTTERY LAWSUIT page and receive updates on the lawsuit, or register to be considered as a plaintiff.  You may also read the FAQ for more information.  

UPDATE - June 2, 2016 - the class action lawsuit has been filed in federal court.

Who's Who Legal Identifies Renison as Leading Corporate Immigration Lawyer

Who's Who Legal has identified Brent Renison as one of the world's leading private practice lawyers in the Corporate Immigration area.  Since 1996, Who's Who Legal has identified the foremost legal practitioners in multiple areas of business law around the world from over 100 countries.  Those lawyers listed have been selected based upon comprehensive, independent survey work with both general counsel and private practice lawyers worldwide.  Only specialists who have met independent international research criteria are listed.

Back of the line! - but is it legal?

I’m going to explain how the immigration service has been unlawfully revoking the approval of petitions for nearly a quarter of a century.  The impact of this unauthorized action on hopeful immigrants has been terrible, resulting in many thousands losing their place in the queue after having waited many years, and having to move to the back of a line in some cases decades long.  To understand how this has happened, you’ll need to understand some basics of the immigration process.

We have a petition process in the U.S., which allows U.S. citizens and permanent residents to file an immigrant petition for a close relative, and allows a U.S. employer to file a petition for an employee after certain prerequisites are met.  The petition is a form that is filed with USCIS, the immigration agency, and when the petition is approved it is assigned a priority date which is the date the person got in line for one of the limited immigrant visa numbers.  In most cases, the priority date is the date the petition was filed, but in cases requiring Department of Labor certification before filing the petition, USCIS uses the DOL filing as the priority date.  Congress has established that immigrant visas, and thus green cards, should be given out in order of priority date, so that people whose petitions were filed before others in the same category should be given green cards first.

After USCIS approves the petition, the agency sends it to the State Department when the person is outside the United States.  It can be many years and even decades between the approval of an immigrant petition and a visa becoming available.  During those years of waiting, an immigrant can check the visa bulletin published by the U.S. Department of State on a monthly basis, or wait to be contacted by the State Department.  Since there are no accurate estimates of how long it may take to actually get a green card in a given category, most people wait to hear back from the State Department. 

After waiting years or decades, the State Department should ultimately send out a notice by mail and email to let the immigrant know their priority date is coming up for a visa number, and that they can apply.  This is called registration for a visa.  But the system of notification is far from perfect, and a person’s change in address or email address can result in the person not being notified.  Lots of people fail to receive notification.

Because there are some people who, after waiting so many years, decide not to immigrate after all, Congress authorized the State Department to terminate a registration where the immigrant has not contacted the State Department after a year.  There is no question that the State Department has been able to terminate registration for the orderly administration of visa issuance since the provision was enacted in 1976, when Congress authorized termination of registration.  In 1976, Congress also authorized automatic revocation of the petition itself.  Regulations were issued after that allowing not only for the State Department to terminate the person’s registration for a visa, but to also allow the immigration service to revoke the petition, effectively destroying it and the person’s place in line.  When that happens, everything is absolutely gone, and the person has to start over.  That’s a harsh result.  In 1991, however, Congress took away the immigration service’s ability to revoke the petition and take away the person’s place in line.  The regulations, however, were not updated, and in the past quarter century, the immigration agency has been revoking petitions based on the law prior to 1991.  This is unlawful and unauthorized.

There were good reasons for Congress to disallow the complete destruction of a petition and place in line just because the State Department terminated the person’s registration for a visa.  Back in 1975, when Congress was considering what to do with termination of registration and revocation of petitions, the State Department Assistant Secretary for Congressional Relations, Robert McCloskey, wrote a letter dated September 22, 1975 to the House Judiciary Committee Chairman.  In that letter, the State Department voiced its opposition to the termination and revocation law being considered by Congress.  Here is what the letter said:

“Section 5 (3) would amend section 203(e) by inserting therein provision for cancellation of an alien’s registration on an immigrant visa waiting list under certain circumstances.  Under this provision, an alien registered on an immigrant visa waiting list would face cancellation of his registration if he failed to pursue his application within one year after notification that his turn had been reached making it possible for him to do so.  The alien would be accorded one additional year during which he could seek restoration of his registration by establishing that his failure to pursue his application had been due to reasons beyond his control.  If the alien failed to come forward during the additional year or if he did so but was unable to establish that his failure to pursue had been due to circumstances beyond his control, the cancellation of his registration would become final and any petition approved to accord him an immigrant status would be revoked. 

The issue of registrants on immigrant visa waiting lists (often referred to as ‘insurance registrants’) who do not pursue their applications when given an opportunity to do so is a long-standing and difficult one.  The presence of such applicants on waiting lists adds to the recordkeeping and other administrative burdens on consular offices abroad and can create false impressions of the magnitude of active demand for immigration.  The Department is, therefore, sympathetic with the objective of this proposed amendment.  On the other hand, the Department foresees that there may well be difficulties in the implementation of this proposal and that its implementation could itself add to the administrative burdens on consular officers.

For this reason, the Department several years ago established an administrative procedure which achieves the purposes sought by this proposal but without incurring the potential difficulties which this proposal might entail.  Consular officers have been instructed to separate all pending immigrant visa applications into two categories – active and inactive.  Among those cases considered to be ‘inactive’ are those in which the alien has failed to respond to an invitation to pursue his case within one year after the invitation is sent to him.  Records pertaining to ‘inactive’ cases are stored separately from those pertaining to ‘active’ cases and are generally not maintained in the working areas of consular offices.  Thus, the administrative burdens associated with maintenance of such records are avoided and there remain only isolated cases in which available storage space is constricted.  Furthermore, all summary reports of total registered demand for immigration are maintained by the two categories – active and inactive – and it is thus possible to identify without difficulty total active registered demand for immigration and, thus, to have a meaningful idea of its magnitude. 

Since this administrative procedure involves neither physical destruction of records and associated documents nor the loss by an alien of any entitlement under the law, it is our belief that it is preferable to the procedure proposed in section 5 (3) of the bill.  We are, therefore, opposed to the enactment of this section.”

So, the State Department was itself opposed to the termination of registration provisions, particularly because it would result in “loss by an alien of any entitlement under the law,” but Congress enacted the restriction in 1976 anyway, although later in 1991, Congress acted to restore a person’s ability to have their visa petition remain intact after State Department terminated registration for the visa. 

Digging into the statute, INA Section 203(g) is the current one which went into effect on October 1, 1991, and 203(e) was the statute in existence prior to that date.  The old 203(e) read as follows:

“(e) ...The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to him of the availability of such visa, but the secretary shall reinstate the registration of any such alien who establishes within two years following notification of the availability of such visa that such failure to apply was due to circumstances beyond his control.  Upon such termination the approval of any petition approved pursuant to section 204(b) shall be automatically revoked.”

The new and current 203(g) section has almost identical language except for the last sentence, authorizing automatic revocation.  In 1991, the statute was amended to specifically remove that.  So that means as of 1991, USCIS had no authority to automatically revoke petitions in cases where the immigrant’s visa registration was terminated.  Yet, the automatic revocation regulations were drafted prior to the change, and were never updated, and thus USCIS has been unlawfully revoking the approval of petitions for the past 24 years based on outdated and unlawful regulations.

There is a section which authorizes USCIS to revoke petitions.  INA Section 205, states: “The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204.  Such revocation shall be effective as of the date of approval of any such petition.”

That section does not, however, authorize automatic revocation.  Courts have held that the immigration service cannot automatically revoke petitions, and that “good and sufficient cause” requires something that would have formed the basis for a denial in the first place.  The Board of Immigration Appeals, in a case called Matter of Estime, held that petitions can only be revoked based on facts which might have resulted in a denial in the first place.  For example, if USCIS approves a case and then discovers later a fraud was committed, then that is good and sufficient cause.  Also, if someone does not respond to Department of State fast enough, then the statute authorizes the State Department to terminate their registration with the State Department.  But that by no means constitutes a basis for USCIS to then revoke the approval of the petition.  There are drastic consequences that result from termination followed by automatic revocation – loss of priority date is the big one. 

There is also the case of Singh v. Clinton, in the 9th Circuit, which holds that in order to be effective, the “alien” must be notified of the availability of the visa, which means the beneficiary, and you may well know that NVC has been bad about sending any notice to beneficiaries at all, instead sending the notice to the petitioner.  So most terminations are not valid for that reason.  But termination of registration can be remedied by paying the visa fee again, and getting the case put back into active status.  When USCIS revokes a petition, however, it has far ranging consequences.  As I said before, it results in the destruction of the petition, and also in the loss of one’s place in line. 

USCIS must immediately stop revoking petitions following a State Department termination of visa registration.  Then, the agency needs to update its regulations to be in compliance with the law passed in 1991.  If the agency fails to do these things, then the courts should step in and require them to halt the unlawful practice.  Longstanding canons of statutory interpretation hold that the regulations cannot do more than the statute allows.  Here the regulation does only what the old law allowed, and goes beyond the current law.  The USCIS policy here is vulnerable to a legal challenge, and the agency would be wise to update the policy before a judge tells them to.

Photo by Digital Vision./Photodisc / Getty Images
Photo by Digital Vision./Photodisc / Getty Images

Go Ask Your Mother - DOS to USCIS

"Go ask your mother," is what Department of State has said to aspiring immigrants, referring them to USCIS to see whether the November visa bulletin will be honored or not.  This is an embarassing slap in the face to the immigration agency, and exposes infighting and lack of communication between the two agencies responsible for managing the legal immigration process.  

On Friday October 9, 2015, the State Department issued its November Visa Bulletin, the first after the October #Visagate2015 fiasco, and for the first time asked readers to look to the USCIS for answers as to whether the bulletin would be accepted.  While the October visa bulletin stated, "USCIS has determined that this chart may be used...this month for filing applications for adjustment of status with USCIS," the November bulletin in contrast stated, "Visit http://www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used...this month for filing applications for adjustment of status with USCIS."  By sending immigrants over to USCIS, they're essentially saying, "Go ask your mother!"  Don't ask us whether it is ok or not, just ask USCIS.

USCIS, in turn, has not updated its website to indicate whether the November visa bulletin will be accepted.  This is embarassing.  If it was intentional, it is embarassing, and if it was negligent, it is embarassing.  How can our government operate in such a way, when the stakes are so high?  When the two agencies which oversee the orderly immigration process have decided to stop talking and coordinating, what can we come to expect?  Can we rely upon the representations made, or will we be left guessing?  What is Secretary of State John Kerry saying about all this, or Leon Rodriquez, the USCIS head?  One can only assume that the agencies have run amok, and are leaderless, scattered and divided.  That does not bode well for immigrants, their families, and the employers who rely upon them for critical support.

How Does Uncle Sam Waste Immigrant Visas?

I'm going to explain exactly how the government wastes on average tens of thousands of immigrant visas every year, contrary to Congressional intent, systematically compromising the workforce and keeping families apart.  Every number in this report represents a green card which could have been issued to a waiting immigrant, but was not handed out due to government mismanagement and ineptitude.  This loss of numbers impacts the very lives of legal immigrants in significant and permanent ways.  To understand how this happens, we have to look at numbers. Because the formulas and calculations get a little complicated, and because the system of numerical limits set up by Congress in 1990 doesn't make a lot of sense, I'm going to use an analogy.  We'll talk about how the system is like a theater that distributes tickets.  The show is the American Dream, and not everyone gets seated.  In fact, in this theater, not every seat gets filled even though there are plenty of people wanting to see the show.

The theater analogy is based on real immigrant categories and numbers.  First, the immediate relatives of U.S. citizens are spouses, parents and minor children of U.S. citizens.  Immediate relatives can immigrate in an unlimited number, so we will call them the VIPs.  Second, are the family immigrants, such as the spouses of permanent residents, adult children of citizens, and brothers and sisters of citizens.  We'll just call them family immigrants.  Third, are the employment immigrants, such as advance degree holders, individuals of extraordinary ability, outstanding researchers and professors, and other professionals.  So the three categories are VIP, family and employment.  

In 1990, Congress established a limit of 140,000 employment immigrants, and a limit of 480,000 family immigrants, except that the numbers of VIP immigrants who were given green cards from the previous year would subtract from the family limit.  For example, in 1989, when Congress would have been considering what rules to enact, there were 217,000 VIPs.  So the number of family immigrants would have been 480,000 minus 217,000, which is 263,000.  As a protection against a situation where there were more VIPs in future years, Congress established a minimum of 226,000 immigrants for the family category.  So even if the number of VIPs in the prior year was more than the 480,000, there would still be 226,000 family immigrants allowed for the year.  Also, to protect against numbers going unused, Congress allowed unused family numbers to be used in the employment line the next year, and unused employment numbers to be used in the family line the following year.  You can see Congress wanted all the numbers utilized.

Let's get to the theater.  There is one particular theater employee who holds all the tickets to the show.  Let's call him Uncle Sam, since he represents the government.  Each night at the theater represents a year of immigration.  For simplicity, let's not use thousands of tickets, but just hundreds.  So Sam is holding 140 instead of 140,000 tickets for employment folks.  He has 480 family tickets, but the theater boss - that's Congress, let's call her Big Boss - said he has to subtract the number of VIPs who came in the night before.  Let's use the example of 1989 numbers, and say 217 VIPs came through the door last night.  So, 480 minus 217 equals 263, which is the number of tickets that can be used for the family line.  That night, Sam is so slow he only manages to distribute 130 tickets to the employment line before the show is over, leaving 10 seats unfilled.  He also gives out only 210 of the 263 tickets for family, leaving 53 seats unfilled.  That night 300 VIPs come to watch the show.  Big Boss tells Sam to take the 10 employment tickets he failed to hand out in time and put them in the family pile for the next night, and the 53 undistributed family tickets into the employment pile.  He does, and the next day he takes 140 new employment tickets and adds them to the 53 family tickets so he has 193 tickets.  He takes 480 new family tickets, plus the 10 employment tickets, which is 490, but then Big Boss tells him to subtract last night's VIP numbers from the pile, leaving him with only 190.  But since the family line always has a minimum of 226 tickets, he increases the tickets to that number.  

Every night thereafter, Sam slowly hands out the tickets, failing to give them all out, and almost always leaving people waiting outside while empty seats remain inside for the American Dream show.  He moves the undistributed employment tickets to the family pile for the next night, but because each night the VIPs are in the 400 to 500 range now, he always just has 226 family tickets the next night.  The unused employment tickets essentially vanish.  That is what is happening with our immigration system, and has been happening from 1990 until the present time.

The CIS Ombudsman's office, which is an independent office within the Department of Homeland Security which provides some independent oversight of the country's immigration agency the USCIS, issued a report in 2010 which showed that over the years, over half a million employment based green cards were wasted, and nearly a quarter million family green cards lost as well.  In 2000, the AC21 law provided for recapture of 130,000 of the lost employment numbers, and in 2005 the REAL ID Act recaptured another 50,000 employment numbers, still leaving about 326,000 employment based green cards wasted, unused, and lost due to government mismanagement of the system.  

You know, I gotta say, if Sam was my employee I would have put him on a performance improvement plan long ago, but Big Boss (i.e. Congress) has simply given him extra tickets to use, and in turn, waste and lose again.  In fact, after the bail out of Sam's losses, he has continued to lose them.  Even after the 2010 Ombudsman's report, the losses have continued.  It is hard to tell, because in 2008, after the REAL ID Act bailout, Sam stopped providing the detailed calculations used to show the unused numbers.  That's right, the reports abruptly stopped, leaving only the raw data.  Well, I wanted to know just how many green cards were lost to Sam's slow moving hand in the five fiscal years from 2010 to 2014, so I got out my calculator, and started adding and subtracting.  It was like helping my middle schooler all over again with math problems.  But now, for the first time, everyone can see the waste that has occurred since the Ombudsman's 2010 report to Big Boss.  More than 38,000 family numbers were lost, and over 8,500 employment green cards were wasted, just in the past 5 years alone.  Those are more than just numbers.  Those are lives hanging in the balance.  Those numbers represent separated family members, dreams on hold, and children who age out and lose eligibility.  

To be fair, Sam has a difficult job.  Big Boss stuck him with a formula that was bound to fail from the get-go.  While Congress may have intended all the unused visas to roll over from one category to the other and vice-versa, they failed to anticipate that the number of VIPs, the immediate relatives, would dwarf the 480,000 limit, leaving only the 226,000 minimum.  If they had realized that back in 1989 or 90, perhaps they would have added the unused numbers in the employment column to the 226,000 minimum instead of the 480,000, and the numbers wouldn't be lost.  But the VIP numbers have been over 400,000 for decades, and now every single unused visa in the employment category goes to waste.

The dual date Visa Bulletin, announced in September 2015 for October 2015, was an attempt to allow individuals to file earlier, and thus give the agency more time to process applications to final decision before the theater closed for the night.  By providing two lists, one for those who could file, and one for those whose cases could finally be approved, the agency would have a better chance at finishing the work in time.  The dual date Visa Bulletin was an attempt to work within the existing flawed system to simply give Sam more time to hand out tickets so they're fully distributed, and so the American Dream show would have all seats filled.  But in its execution, the October 2015 Visa Bulletin failed because the two agencies which give out green cards, the Department of State and the USCIS, can't seem to communicate.  

Because of this time proven reality, the system simply needs changing.  It is unrealistic to fire Sam, since he's the only one who Big Boss can hire to do the job.  The green card numbers need to be allowed to truly roll over, without being lost to the black hole.  

The numbers lost, just in the past 5 years since the Ombudsman's report (see figure below), should be reason enough to upgrade the system.  Remember the operating system in 1990?  It was Windows 3.0.

Wasted Visas FY2010 - FY2014 - Calculations by Brent Renison, Esq. - cOPYRIGHT 2015 pARRILLI rENISON llc ALL RIGHTS RESERVED.

2010 CIS Ombudsman's Report on Unused Family and Employment Preference numbers from fiscal years 1992 until 2009:

326 Thousand Wasted Visas

While the visa bulletin fakeout has been a major focus of everyone's attention, let's not forget that the same mismanagement resulted in the waste of hundreds of thousands of immigrant visas (green cards) that could have been used over past years.  Those visas are lost forever, and without special legislation will stay that way. The wasted immigrant visas are the reason the backlogs are so bad in the first place. Every single person impacted by the October 2015 Visa Bulletin Fakeout would have already received a green card by now if the 326,000 visas were not wasted in past years.  While desperate immigrants scramble for a few thousand visas each year, remember the wasted visas, and how the government has failed time and again to protect against it.

Listen to the podcast to learn the full details (either on the player above, or on iTunes by subscribing - see "get it on iTunes button to the left).  For listeners, here are some resources:

2011 NFAP Policy Brief: Waiting and Waiting 

"A surprising contributing factor to the employment-based green card backlog is unused visas from prior years. Between FY 1992 and FY 2006, more than 506,000 employment-based immigrant visas went unused, as illustrated in the Appendix.10 Administrative issues within the federal government, particularly prior to FY 2005, prevented the U.S. immigration system from distributing all of the employment-based green cards available under the law. The State Department reports that 180,039 of the 506,410 unused employment visas have been recaptured by special legislation.11 That leaves more than 300,000 never utilized." see page 8.

2011 Congressional Research Service Report on Per Country Limits

Extensive look into the per country limits and history

Analysis: New High Skilled Immigration Bills

"In order to reduce visa backlogs, the bill calls for the recapture of unused EB visas for fiscal years 1992 through 2013, to be used beginning in FY 2016. Going forward, it calls on the Department of Homeland Security (DHS) and Department of State to ensure that every EB visa authorized to be used within a fiscal year is issued to a qualified applicant. Any unused EB visas would roll over to the following fiscal year. According to U.S. Citizenship and Immigration Services (USCIS), over 500,000 EB visas were unused between FY 1992 and FY 2009, 180,000 of which were recaptured by previous legislation."

2010 CIS Ombusdman Annual Report

"Coordination between the agencies is improving, but remains a challenge." See Chart of Wasted Visas on Page 53 of the PDF report.

Wall Street Journal Graphic on Visa Wait Times over two decades

Waiting for a Green Card Chart

For background on the visa bulletin fakeout, see the last post and podcast.