Why the International Entrepreneur Rule Doesn’t Work Well

The International Entrepreneur Rule was designed by the Department of Homeland Security during the Obama administration to create a pathway for entrepreneurs seeking to stay in the United States to start and grow their companies through a grant of parole (not status!) The threshold criteria and key elements for the International Entrepreneur Rule are:

• Entrepreneurs may be either living abroad or already in the United States.

• Startup entities must have been formed in the United States within the past five years.

• Startup entities must show substantial potential for rapid growth and job creation by showing at least $311,071 in qualified investments from qualifying investors, at least $124,429 in qualified government awards or grants, or alternative evidence.

• The spouse of the entrepreneur may apply for employment authorization after being paroled into the United States. (Children are not eligible for employment authorization.)

• The entrepreneur may be granted an initial parole period of up to 2.5 years. If approved for re-parole, based on additional benchmarks in funding, job creation, or revenue described below, the entrepreneur may receive up to another 2.5 years, for a maximum of 5 years. (At that point or earlier, there are other Options for Noncitizen Entrepreneurs to Work in the United States.)

• Up to 3 entrepreneurs per startup can be eligible for parole under the International Entrepreneur Rule.

On its face, the rule appears enticing for those who meet the investment requirements. However, once one digs in, the rule has many drawbacks that become apparent after pursuing this pathway.

First, the Rule’s requirement showing that the startup entity has received at least $311,071 in qualified investments from qualifying investors requires a thorough examination of the “qualified investors” and their investments into other companies. The USCIS policy manual provides:

A qualified investor must also regularly make substantial investments in start-up entities that subsequently exhibit substantial growth in terms of revenue generation or job creation by demonstrating that during the preceding 5 years:

• The qualified investor made investments in start-up entities in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within their respective industries comprising a total in such 5-year period of no less than the investment amount in the chart below; and

• Subsequent to such investment by such individual or organization, at least two such entities each either created at least five qualified jobs or generated revenue of at least the amount in the chart below with average annualized revenue growth of at least 20 percent

In order to satisfy this requirement, USCIS wants to see what other investments an investor has made to meet the “qualified investor” requirement. USCIS wants to review information about non-parties, a massive privacy concern for investors who may not wish to share their investment strategies and potentially personal identifying information with the US government.

Second, the application is submitted on form I-941 which cannot be premium processed for an additional fee. The USCIS case processing times website does not provide processing times for form I-941 but many have reported that processing currently takes over a year. Founders cannot wait a year as time is of the essence when starting a business.

In sum, the program can and should be overhauled to loosen its restrictions with regards to initial applications and applications for extension. This sentiment is echoed by the number of applications, with a mere 94 applications filed since Fiscal Year 2021. There are many less invasive ways to determine whether an investor is qualified that do not necessitate investigation into non-parties. Lastly, approval of form I-941 merely grants parole and not status. In overhauling this rule, a new visa category, granting status, should be carved out.

The Biden Administration's new Parole in Place Program

The Biden administration recently announced the implementation of a new program to expand parole to approximately half a million undocumented immigrants residing in the United States. This program is designed to provide a pathway to “parole” for the undocumented spouses of US citizens and undocumented stepchildren of US citizens. On August 16, 2024, USCIS released information about this program which is set to begin accepting applications on August 19, 2024. USCIS further outlined that those undocumented spouses and undocumented stepchildren, upon approval of their “Parole in Place” applications, would be able to apply to adjust their status from “parole” to green card holder, providing much needed relief to thousands of individuals.

How do I know if I qualify?

• If you are an undocumented spouse of a US citizen you need to meet the following thresholds to apply for the Parole in Place program:

  • The US citizen spouse must have obtained their citizenship on June 17, 2024.

  • Must have married the US citizen spouse on on before June 17, 2024.

  • 10 years of continuous presence in the US by June 17, 2024.

  • No disqualifying criminal history.

  • No acts that threaten national security or public safety.

  • And lastly, must merit a favorable exercise of discretion.

• If you are an undocumented stepchild of a US citizen you need to meet the following thresholds to apply for the Parole in Place program:

  • Need to satisfy the immigration law definition of a stepchild.

  • No 10 year continuous presence requirement.

  • No disqualifying criminal history.

  • No acts that threaten national security or public safety.

  • And lastly, must merit a favorable exercise of discretion.

For an evaluation of your potential case, please reach out to us here and one of our attorneys will be in touch.

The benefits of filing an EB-2 National Interest Waiver (NIW) as a self-petition

Perhaps you’ve just graduated from university and have begun working pursuant to your F-1 OPT work authorization, you’ve just secured an H-1B visa, or you’ve just entered the United States in L-1 status, and you have no idea how to get your green card process started. Alternatively, it might be that you’re eager to get your green card process started but your employer is hesitant, or your employer is struggling with their PERM program, or even worse—the employer’s PERM program was shut down by the Department of Labor due to your employer’s mismanagement. You may be in a situation where PERM is off the table or PERM is taking too long (current delays amount to a 2+ year wait time) and based on your qualifications, the EB-1 pathway is out of reach until you have a couple more years of experience, but you’re running out of time on your nonimmigrant visa status.

It may be that your employer is now thinking of pursuing an EB-2 National Interest Waiver for you, which sounds great. Securing an EB-2 National Interest Waiver could streamline the first steps in your employment based green card process and provide much needed protection.

It is important to know that if your employer begins the EB-2 National Interest Waiver process for you, and lists themselves as the petitioner, the EB-2 National Interest Waiver, if approved, will be tied to this employer. This means that if your employer lays you off, you would need to go through the whole process again with a new employer. In the current economy, many foreign nationals are feeling this pressure and would gladly rid themselves of the restraints many employers place on their employees when it comes to immigration benefits.

You have another option. By filing the EB-2 National Interest Waiver as a self-petition, either through your employer or on your own, securing an approval, you can take that approval notice with you anywhere as long as you continue to pursue your endeavor in the national interest. When your priority date finally becomes current you can apply for adjustment of status without a bona fide job offer thus streamlining your green card process and ridding yourself of the onerous process of renewing your nonimmigrant visa status.

So, how does one begin this process? For starters, a basic understanding of the EB-2 Advanced Degree category is needed. There are two categories of EB-2 immigrant based visas, based on two sub-categories of requirements: Advanced Degree and Exceptional Ability.

EB-2 Advanced Degree Sub-Category

The EB-2 Advanced Degree sub-category is for those who have obtained an Advanced Degree, meaning you must have secured a U.S. Master’s degree or its foreign equivalent. In the alternative, if you have obtained a Bachelor’s degree, you can still satisfy this requirement by showing that you have 5 years of progressive experience in your field of expertise.

If you have a PhD in a STEM field, there are specific evidentiary considerations for your petition which may benefit you. To learn more about this, please reach out to us here and one of our attorneys will be in touch.

EB-2 Exceptional Ability Sub-Category

If you have neither an Advanced Degree nor a Bachelor’s degree with 5 years of progressive experience in the field, you must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered” in your field. You must satisfy at least three of the “Exceptional Ability” requirements, which are outlined as follows:

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability

• Letters from current or former employers documenting at least 10 years of full-time experience in your occupation

• A license to practice your profession or certification for your profession or occupation

• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability

• Membership in a professional association(s)

• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations

• Other comparable evidence of eligibility is also acceptable

National Interest Waiver

The next step after establishing the advanced degree requirement is the waiver of the labor certification process, otherwise known as the national interest waiver. You must show that your proposed endeavor in the United States is in the national interest. USCIS weighs the following three factors in determining whether one’s endeavor is in the national interest and would thus warrant a waiver of the labor certification process:

• The proposed endeavor has both substantial merit and national importance.

• You are well positioned to advance the proposed endeavor.

• On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

How do I determine whether I qualify for the EB-2 NIW category?

This can be determined by having our firm review your credentials. For an evaluation of your potential case, please reach out to us here and one of our attorneys will be in touch.

Parrilli Renison Law Firm Earns Top Chambers Ranking

Our firm is pleased to announce our top ranking in Chambers and Partners, the world renowned guide to the legal profession.

Our ranking can be found on the Chambers website HERE and the Chambers Review is below:

What the team is known for Prominent immigration boutique which handles the full spectrum of matters for employers, including intracompany transfers, and nonimmigrant and permanent resident visas. Also noted for its handling of extraordinary ability petitions and litigation stemming from immigration denial, frequently challenging them before federal courts. Excellent client base in the healthcare sector ranging from hospitals and universities to biotech companies, with further acclaimed experience assisting clients in the aerospace, engineering, manufacturing and packaging industries.

Notable practitioners

Brent Renison is regarded by peers as an "amazing" attorney. He has over two decades of experience representing both employers and employees in complex business immigration matters. He is further proficient in litigating for individuals in relation to their immigration rights.

Tifani Parrilli is a trusted choice for business immigration issues. She represents employers in a wide array of matters including labor certifications and nonimmigrant visas. She is particularly well regarded for her expertise in handling extraordinary ability petitions.

Trump Stops Immigrants From Entering for 60 days and Maybe More

On Monday night President Trump posted this on twitter:

In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!

He also said in a Tuesday press conference that “It would be wrong and unjust for Americans laid off by the virus to be replaced with new immigrant labor flown in from abroad.” This presumes unjustly that immigrants take jobs from Americans.

We represent GREAT immigrants who want to know what all this means. The Executive Order (EO) was issued Wednesday, (you can read the actual document here) and below is our analysis of who it does and does not impact:

His EO impacts people who are trying to enter the country as immigrants after 11:59 p.m. Eastern Time on April 23, 2020 for an initial period of 60 days. Trump hinted in a press conference it could be extended. It will not impact U.S. citizens or Lawful Permanent Residents (LPRs or Green Card holders) and spouses and minor children under 21, sibling if both under 21). The bans primarily affect immigrants (people applying for immigrant visas) seeking to enter the United States.

It will not affect people coming temporarily on work visas. It will not affect people applying for green cards in the United States through the adjustment of status process.

The entry ban also doesn’t apply to someone already in the U.S. on the effective date, and also those who already have a valid immigrant visa on the effective date. So if someone has a valid immigrant visa in hand, it can still be used to enter.

The ban has some exceptions particular to a person’s job or category, and people in these circumstances can still enter despite the ban:

Any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien, and

Any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program.

It excludes from the ban members of the U.S. Armed Forces and spouse and children.

Other exceptions from the ban include people whose entry would be in the national interest or certain special immigrant visas.

The section of law that Trump used for the legal basis of the EO is Immigration & Nationality Act Section 212(f) which reads: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

That is a sweeping power given to the President by Congress in 1952.

The Supreme Court has held this power to be fairly absolute as in Trump v. Hawaii, where the Supreme Court held that, section 212(f) "exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions." It only requires Trump to decide the entry of aliens is detrimental to the interests of the United States.

This EO could be challenged in court, and could be “enjoined” (stopped) or allowed to proceed.

What’s next? Who knows, but the EO says that within 30 days the Secretaries of Homeland Security, Labor and State should report on what limits to place on nonimmigrants. There is surely another ban to come on that score.

Trump's Tweet About Suspending Immigration

LATEST: See our other blog post for the actual Executive Order and what it means HERE.

UPDATE: Trump says in a press conference that the suspension of immigration will be for immigrants (those seeking green cards) who are “flown in from abroad” and will be for 60 days initially then re-evaluated. Here are his statements, followed by my analysis:

“[I]n order to protect American workers, I will be issuing a temporary suspension of immigration into the United States; you heard about that last night.  By pausing immigration, we’ll help put unemployed Americans first in line for jobs as America reopens.  So important.  It would be wrong and unjust for Americans laid off by the virus to be replaced with new immigrant labor flown in from abroad.  We must first take care of the American worker — take care of the American worker.

This pause will be in effect for 60 days, after which the need for any extension or modification will be evaluated by myself and a group of people, based on economic conditions at the time.  This order will only apply to individuals seeking a permanent residency.  In other words, those receiving green cards — a big factor — it will not apply to those entering on a temporary basis.

As we move forward, we’ll examine what additional immigration-related measures should be put in place to protect U.S. workers.  We want to protect our U.S. workers.  And I think, as we move forward, we will become more and more protective of them.”

My thoughts: This will stop people from entering the country on immigrant visas, when they have been issued them after an interview at the consulate. It should not affect people who apply for adjustment of status in the United States, and the exemptions I mentioned below in the first draft of this blog post would apply (such as being a close relative to a U.S. citizen or green card holder).

On the night of April 20, President Trump posted this on Twitter:

In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!

Because we represent GREAT immigrants, many of our clients are asking us this morning what this means.

The answer is that we do not yet know for sure, because this is only a Tweet and because the Executive Order (EO) that he refers to hasn’t been issued. But we have a sense of what it could mean, so here are our very approximate ideas:

His EO will likely impact people who are trying to enter the country for a period of time after the EO’s effective date. We have heard it might be for 120 days or “something.” It will not impact U.S. citizens or Lawful Permanent Residents (LPRs or Green Card holders) and based on previous travel bans it will probably exempt some of their close relatives (spouse, minor child under 21, sibling if both under 21). The bans primarily affect nonimmigrants (like work visas) seeking to enter the United States, and immigrants (people with immigrant visas) seeking to enter the United States.

The section of law that Trump will likely use for the legal basis of the EO is Immigration & Nationality Act Section 212(f) which reads: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

That is a sweeping power given to the President by Congress in 1952.

The Supreme Court has held this power to be fairly absolute as in Trump v. Hawaii, where the Supreme Court held that, section 212(f) "exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions." It only requires Trump to decide the entry of aliens is detrimental to the interests of the United States.

This forthcoming EO is likely to be challenged in court, and could be “enjoined” (stopped) or allowed to proceed.

The EO will probably provide some exceptions for some people in certain industries. It will probably not affect green card applications in process with USCIS since that isn’t an entry but rather an adjustment of a person’s status who has already entered. But we aren’t sure about this. It should not impact extensions of status in the nonimmigrant work categories.

We will provide an outline of who is banned from entry to the United States and for how long in a future blog post here, once the EO is issued.

Trump Ends DACA, Allows Renewal Window for 30 Days

Keeping an election promise he made to other Republicans to end DACA, President Trump has bowed to pressure by Republican governors from Texas and other states to halt the program. As of today, no new initial DACA applications will be approved, and no advance parole cases will be granted.

Renewal applications that are pending now will continue to be granted. Any renewal application filed on or before October 5, 2017 will also be granted, provided the current DACA validity period expires between September 5, 2017 and March 5, 2018.

DACA approvals will continue to remain valid until they expire, and none will be revoked except in instances where the person has become ineligible, for a criminal arrest or conviction for example.

If your DACA approval expires between September 5, 2017 and March 5, 2018, you should consider renewing your DACA by the deadline of October 5, 2017. Here is the link to the memorandum ending the DACA program:

https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

Here is an FAQ.

Now that DACA is ending, we need Congress to pass a law allowing for legal status for DREAMers. The best way to do this is for people to call their Senators and Congressperson and ask them to support passage of the DREAM Act.

You can find your Congressperson by entering your zip code on the House of Representatives website (www.house.gov) and your Senator on this website: www.sentate.gov

Urge them to pass the DREAM Act, and also encourage your friends, family, neighbors and coworkers to urge passage of the DREAM Act.

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.