Corporate Immigration Law News

The negative impact of the recent trend of heightened scrutiny of employment-based immigration benefits (as evidenced by DOL’s statistics of increased PERM audits and denials, along with USCIS’ increased requests for evidence (“RFEs”)) was thrust into the limelight by recent coverage in Bloomberg Businessweek in an article entitled “Want to Move A Worker to the U.S.?  Good Luck”.

The article discussed the utter frustration experienced by Oracle Corporation (NASDAQ:ORCL) regarding the increasing difficulty and expense in hiring and transferring foreign technology workers.   According to Denise Rahmani, the Director of the U.S. Immigration program at Oracle, the government denied an astonishing 38% of the Oracle’s visa requests last year. In the wake of these results, Ms. Rahmani has indicated that in today’s climate of heightened scrunity, “it feels like the roll of the dice every time.”

While these frustrations are nothing new to multinational companies, large or small, Oracle’s recent complaints bring to life the realities associated with the recent trend by both USCIS and DOL of heightened scrutiny and standards of proof for employment-based petitions and applications.  Many companies, like Oracle, assert that the denials and requests for evidence are arbitrary in nature, the results of which often cost these companies millions of dollars in unnecessary expenses.  Indeed, in one rather gleaming example of the arbitrary nature of some of these USCIS denials, Ms. Rahmani reported that an Oracle worker’s request for an extension of stay of his/her L-1B nonimmigrant classification was denied because USCIS determined that the company failed to demonstrate the particular worker’s specialized knowledge of a certain type of Oracle software when, in reality, this particular employee was responsible for writing Oracle’s training manual for that software.

It’s easy to understand the frustrations of Oracle and other companies. The higher instances of issuance of requests for evidence and ultimate denials reflect a major policy change in the Obama Administration of the immigration policy from prior years, when the denial rate for petitions seeking the L-1B classification, for example, was in the single digits.  Since 2008, the denial rate has tripled.

USCIS Director Alejandro Mayorkas acknowledges the criticism that his office is inconsistent in its decision-making is “in part warranted,” and that he’s working to fix the problem.

Bloomberg Businessweek posits that perhaps there aren’t enough caseworkers to properly handle the 400,000+ petitions filed every year for nonimmigrant workers and, that further, it is probably difficult for some caseworkers at USCIS to understand certain specialized fields, or whether or not American workers would be able to perform some jobs as well as the foreign workers many companies aim to hire.

These frustrations have resulted in large companies including Oracle, Microsoft, Starwood Hotels and 50 other companies writing a letter to the Obama Administration warning them that this practice was hurting the American economy and job growth.

Only time will tell if such letter will result in any type of policy change or whether the government will continue the disturbing trend of increased audits, RFEs and denials.

In May 2012, the Department of Homeland Security (DHS) released an updated list of science, technology, engineering, and mathematics (STEM) degrees that qualify for a 17-month extension of the 12-month period of Optional Practical Training (OPT). Indeed, students whose most recent degree qualifies as one of the disciplines provided on the DHS’ recently updated list are now eligible for up to 29 months of OPT, provided all other conditions are met (described below).  This 17 month extension of the OPT period, in most cases, is good news for a qualifying employer, as such extension may postpone the need for such employer to file an H-1B petition for an OPT employee for one additional year.  It also presents an advantage to employers, when the U.S. economy is more robust and the demand for new H-1B numbers is so great that USCIS resorts to an H-1B filing-based “lottery” system.  In those years, this 17 month extension of the OPT period provides employers with two “bites at the apple” for the chance of an employee being selected in the H-1B lottery.

This decision is part of the Obama Administration’s attempt to make the United States more competitive in the global race to attract those students whom are often referred to as our “best and the brightest”.  When taking a closer look at the updated list, one will note the addition of new disciplines, which may also suggest that the government has actually expanded its horizons, and is adjusting to the ever-changing needs of our market economy. The list now includes, among other disciplines, degrees in behavioral sciences, pharmaceutical studies, econometrics and quantitative methods studies, all of which are new disciplines to the STEM designation entirely.

The DHS has also suggested that it may “grandfather” certain students by permitting students with STEM degrees to apply for the OPT extension even if their STEM degree is not their most recent degree. We can only hope this suggestion comes to fruition as it will allow more highly-qualified foreign students in these newly introduced disciplines to take advantage of the 17 month extension of OPT, which extension was otherwise unavailable upon their completion of that degree.

However, until such a change is formally adopted by DHS, the requirements for the 17 month extension of the 12 month period of OPT remain as follows:

1)    A qualifying student must apply (and be authorized for) an initial 12-month OPT authorization;

2)    The qualifying student must be working for an employer that is registered with E-Verify;

3)    The qualifying student must apply for the 17 month extension during the 12 month period of OPT (i.e., he/she cannot apply within the 60-day departure grace period). However, if the qualifying student timely applied for the extension and a decision remained pending at the time the initial OPT period expires; the student can extend his/her work authorization for up to 180 days.

Also, if a sponsoring employer applies for the H-1B classification under the annual cap for an OPT candidate, that candidate may also take advantage of the “cap gap” measure, which measure allows F-1 students whose OPT expires prior to October 1 (the effective date of a cap-subject H-1B petition) to continue working for the employer (with valid work authorization) while the H-1B visa petition is pending review and/or following approval of the petition by USCIS.

If you have any questions regarding eligibility for an OPT extension, E-Verify, or the H-1B cap gap measure, please feel free to contact us.

In a memorandum written to the directors of the U.S. Customs and Border Protection Agency (CBP), Citizenship and Immigration Services (USCIS), and Immigration and Customs Enforcement Agency (ICE), the Obama Administration responded to years of pressure from immigration rights activists by authorizing the use of prosecutorial discretion by these agencies. The order effectively stops the deportation of certain young immigrants in this country, better known as DREAMers.

DREAMers get their name from the DREAM Act, or the Development, Relief, and Education for Alien Minors Act, which was first introduced as bipartisan legislation in 2001 by Senators Dick Durban (D-Ill.) and Orrin Hatch (R-Utah). Initially, it garnered significant support as a novel way to alleviate part of the illegal immigration problem. The central tenant of the act focused on young immigrants of good moral character who were illegally brought into the country by their parents. The act was to provide them with legal residency status under certain conditions, including the completion of at least two years of college or military service, and at least five years of residency in the U.S. prior to the enactment of the legislation. The DREAM Act has since seen several different revisions, but has only been met with delay due to congressional inaction.

Support for the DREAM Act seemed to be declining with the passage of time. However, in recent months, new legislation and proposals similar to the DREAM Act have begun circulating in Congress. In January, Rep. David Rivera (R-Fla.) introduced the ARMS Act, which would require military service as a condition to obtaining permanent resident status. Rep. Rivera also introduced the STARS Act just last month, an act that would allow undocumented students to receive permanent residency status if they were under the age of 19 at the time of application and subsequently completed a four-year degree.  Meanwhile, Senator Marco Rubio (R-Fla.) has made a proposal to provide non-immigrant visas to young illegal immigrants, though he has yet to specify any details of the legislation. Sen. Rubio has, however, expressed his intent to narrowly tailor the legislation to address Republican immigration concerns with the DREAM act.

But talks of new legislation similar to the DREAM act came to a standstill after the announcement by the Obama Administration this past Friday. The memo written by the Secretary of Homeland Security, Janet Napolitano, set forth the criteria by which the Department of Homeland Security would exercise its prosecutorial discretion in enforcing immigration laws against those young people who were illegally brought into the U.S. but knew no other country as their home. The outlined criteria mirror that of the DREAM Act to a certain degree. Specifically, the memo states that if an individual: (1) came to the United States under the age of 16; (2) has continuously resided in the U.S. for at least five years preceding the date of the memo and is present in the U.S. on the date of the memo (June 15, 2012); (3) is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or the Armed Forces of the U.S.; (4) has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses as threat to national security or public safety; and (5) is not above the age of thirty; he/she should be subject to prosecutorial discretion and should be prevented from being placed into removal proceeding and being removed from the United States.

“This grant of deferred action is not immunity,” Napolitano said in an interview. “It is not amnesty. It is an exercise of discretion so that these young people are not in the removal system. It will help us to continue to streamline immigration enforcement and ensure that resources are not spent pursuing the removal of low-priority cases involving productive young people.”

The Obama Administration has stated that the policy change is expected to affect approximately 800,000 immigrants, though a Pew Hispanic Center (a project of the Pew Research Center) study has calculated that up to 1.4 million children and young adults could benefit from the change. This number represents an estimated 12% of the unauthorized immigrant population. 70% of the potential 1.4 million beneficiaries are from Mexico.

Determinations will be made on a case-by-case basis, suggesting that relief cannot be guaranteed to an illegal immigrant simply because they fit the initial five criteria. Further, the President emphasized the temporary nature of the order and called for Congressional action in creating permanent legislation on this issue. As it stands, the order would become ineffective in two years unless renewed by the next president. Moreover, the order does not actually confer any kind of substantive right, immigration status, or pathway to citizenship. But the Department of Homeland Security has stated that individuals who are granted the deferred action may send applications to the USCIS to determine whether they qualify for work authorization.

While those granted deferred action in accordance with the new policy are not necessarily on a path to U.S. permanent residency, let alone U.S. citizenship, they at least now are keeping their dream alive.

With the U.S. Citizenship and Immigration Services (“USCIS”) reportedly receiving 6-7 million applications per year, a speedier and more efficient adjudicative process is urgently needed.  In response, USCIS recently launched the first phase of ELIS (short for Electronic Immigration System), which is a web-based system that allows qualifying foreign nationals to electronically file petitions for extending or reinstating certain nonimmigrant visa classifications (B-1, B-2, F-1 M-1 or M-2). It is meant to be more efficient and reliable and, thus, will shorten the processing time of  the above-listed petitions.

USCIS has plans to expand the scope of ELIS to allow users to electronically file petitions and applications seeking all immigrant and nonimmigrant classifications.

In addition to shorter processing times, there are other benefits of using ELIS.  For example,  ELIS users have the advantage of paying filing fees online, updating user profiles online, responding to requests for additional evidence electronically, receiving USCIS notifications by way of email or text message (as soon as an adjudicating officer takes action on the pending petition and/or application), and submitting and storing supporting evidence for future use.

It’s important to note that use of the ELIS is not mandatory for the above-described petitions – the paper filing alternative is still offered along with the previous E-filing system. The difference between the previous E-filing system and ELIS is that the latter is an end-to-end electronically based system, whereas the previous E-filing system still requires applicants to mail the supporting documents to USCIS for the adjudicating officers to review the applications manually, thus increasing the processing time.

If you have any questions regarding the ELIS, please feel free to contact us.

The recent statistics on PERM processing (the first step of the employment-based green card process) and USCIS adjudication rates in the employment-based visa categories confirm a trend that practitioners have observed and struggled with over the past few years: higher rates of denial, delays in adjudication and increased PERM audits and requests for evidence (“RFEs”). To some, the data suggests that the government is overreacting to the economic conditions in the country, and unnecessarily impeding employers’ ability to retain the best and brightest foreign workers. However, a closer look at the numbers also reveals that we as practitioners have been able to adapt to the heightened standards of proof and are still able to achieve positive results for our clients.

The 2012 Department of Labor statistics reveal an increase in denial rates of PERM petitions. While the Department denied less than 20% of PERM petitions between 2008 and 2010, that number has climbed to 25% for the fiscal 2011. The same trend is apparent with H-1B, L-1A, and L-1B petitions.  The denial rate for H-1B petitions has grown from 11% in 2007 to 29% in 2009 and 21% in 2010. Although denials dropped to 17% in 2011, the rate of issuance of RFEs increased significantly: from 4% in 2004, to 26% in 2011, peaking at 35% in 2009. For L-1A petitions, the denial rate grew by 6% between 2007 and 2011, and today every second petition is subjected to an RFE. The numbers in the L-1B category are even more disheartening: denials increased by 20% between 2007 and 2011, while the RFE rate nearly quadrupled for the same period.

These are clear examples of how the government has raised the bar for employers in an attempt to safeguard American jobs. The drop in denial and RFE rates in the H-1B category between 2009 and 2011 indicates that practitioners are responding and adjusting to the new standards of proof. The fact that the rates of denial under PERM and H-1B are only higher by 5% and 6%, respectively, suggests that despite the heightened standard of proof, the government has not gone on an exclusionary war against business immigration. The bulk of these applications and petitions are still approved, despite audits and requests for evidence. In a way, this development does not mean that the system is necessarily flawed but, to the contrary, that it has been able to adapt to the economic conditions in the country without completely barring an employer’s ability to retain qualified foreign workers that make significant contributions to the U.S. Even though the economy has not recovered completely, the relatively small difference in denial rates for PERM applications and H-1B petitions suggests that practitioners are adapting and responding accordingly.

Last month, Senator John Cornyn (R-Texas), the senior Republican on the Immigration, Refugees, and Border Security Subcommittee, introduced a proposal called the “Securing the Talent America Requires for the 21st Century Act”, or the STAR Act. The legislation was designed to allocate 55,000 visas a year for students who earn master’s or doctoral degrees in science, technology, engineering, and mathematics (more commonly referred to as “STEM” graduates). The emphasis on granting such graduates the opportunity to remain in the United States is understandable as foreign students make up approximately half, if not more, of the recipients of master’s and Ph.D’s in STEM-related fields. Indeed, according to the National Science Foundation, foreign students earned 57% of all engineering doctorates, 54% of all computer science degrees, and 51% of physics doctoral degrees in 2009.

Proponents of the bill suggest that the lack of a solid immigration policy is causing the nation to lose many of the world’s best minds—entrepreneurs and job creators—to competitors abroad. Currently, many foreign technology graduates work in the U.S. on a temporary basis with the assistance of the H-1B program. But because H-1B visas are only valid for an aggregate of six years (unless certain other conditions are met, i.e. the employer has timely started green card process for the employee), many foreign graduates are forced to return to their native countries.

For nearly a decade, both technology companies and immigration advocates have demanded an easier solution for workers with advanced degrees to remain in the country, contending that there are not enough domestic technology workers to meet their needs. The STAR Act suggests one solution to the shortcomings of the H-1B visa and securing foreign STEM graduates in the United States. That is, the STAR Act aims to replace 55,000 diversity visas currently available to individuals from countries with low rates of immigration with 55,000 STEM graduates. Simply put, Cornyn’s bill is based on his belief that the green card lottery (otherwise known as the Diversity Lottery) “needs to be dumped for a ‘merit based approach’ to immigration in which the nations’ economic needs are considered when granting green cards.”

Senator Cornyn’s bill has garnered significant support from universities and high-tech companies all over the country. However, as of yet, it is unclear whether conservative Republicans will support the bill, though it is likely that the Democrats who currently make up the Senate majority will oppose the legislation.

Criticism surrounding the STAR Act comes from a variety of interest groups. Some critics are concerned that such a program would harm U.S. technology workers by increasing job competition, displacing the unemployed U.S. technology workers, and promoting age discrimination. Others, meanwhile, are more concerned with the elimination of diversity visas under the STAR Act, suggesting that the value of ethnic diversity should not be undermined because diversity strengthens the country in different ways. More criticism comes from yet another angle as “Dreamers” disparage the act for ignoring the group of undocumented students who have grown up in the U.S. and could themselves constitute STEM graduates within the country. And still, there are others who are concerned that the bill would mark the beginning of a new form of immigration abuse – the creation of “diploma mills” aimed at foreign nationals who want permanent residency status.

Senator Cornyn’s proposal comes amidst a wave of bipartisan efforts to increase the number of permanent visas available for STEM graduates, signaling a nationwide concern for American global competitiveness in these fields. Both Republicans and Democrats have introduced a number of bills in the month of May alone. Notably, U.S. Senators Jerry Moran (R-Kan.), Mark Warner (D-Va.), Marco Rubio (R-Fla.) and Chris Coons (D-Del.) introduced Startup Act 2.0 that seeks to allow green card availability for advanced degree STEM graduates. Senator Coons also co-sponsored a green card STEM bill with Senator Lamar Alexandar (R-Tenn.). In the House, Rep. Zoe Lofgren (D-Cal) introduced a Democrat-only green card bill and Rep. Raul Labrador (R-Idaho) introduced a Republican version of the same bill.

The flurry of legislative activity more than suggests a growing belief that the U.S. needs to make it easier for a foreign student with an advanced STEM degree to remain in this country, though the bills differ as to how they aim to facilitate the process. Proponents of such bills, including President Obama, state that such action is necessary in order to maintain American leadership in the technological field. In this atmosphere, it is likely that more bills are going to arise, though it is unlikely that any such bill will be approved this year (at least before the election). Although both Republicans and Democrats have demonstrated a belief in a need for change in the immigration policy, pursuit of reform is often tied to other more contentious issues such as amnesty, border security, and a path to citizenship and, of course, re-election campaigns for both sides.

As of June 1, 2012, the United States Citizenship and Immigration Services (“USCIS”) had already received 55,600 petitions of the 65,000 available under the H-1B Regular Cap for Fiscal Year (“FY”) 2013. USCIS also reported to receive 18,700 petitions of the 20,000 cap for the U.S. Master’s Degree Exemption. Therefore, in just two (2) short months, USCIS has nearly exhausted its entire H-1B quota for 2013. In all likelihood, the cap season will come to a close in a matter of days as the pace of cap-subject H-1B petition filings has picked up precipitously in the last few weeks and days.

The high numbers of cap-subject petitions received  reflect a significant contrast from last year’s H-1B season. Last season, the cap was open for nearly 8 months after the quota became available. This contrast may suggest an improvement in the U.S. economy, though in prior years, when the economy was more robust, the cap was filled in just a few days.

It is important to note that the H-1B cap does not affect H-1B extensions of stay and H-1B transfers. Those petitions will continue to be accepted regularly by the USCIS. Similarly, H-1B nonimmigrants who work at (but not necessarily for) eligible research institutions, universities, and other qualifying non-profit facilities may also be excluded from the H-1B visa cap.

If you have any questions about the H-1B visa cap or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.