Greg Siskind’s Scorecard on the White House Visa Modernization Report

Posted on: July 16th, 2015
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Yesterday I summarized the White House Visa Modernization report. But today I’ve been studying whether what was said really lived up to the billing and whether the public feedback was considered or ignored.

In quick followup to the November 2014 announcements, the State Department and the Department of Homeland Security issued a Request for Information (RFI) and asked 18 questions regarding how to make improvements to the legal immigration system in the US. They received more than 1600 responses by the late January 2015 deadline.

I examined responses from the American Immigration Lawyers Association, the US Chamber of Commerce, the IMG Taskforce and other organizations as samples to compare to the actual recommendations issued yesterday. I also compared the RFI itself to the report issued yesterday.

Unfortunately, my conclusion is that the report is timid and disappointing. The vast majority of comments were ignored and entire questions from the RFI were left out of the report.

Below are the 18 questions asked in the RFI along with my grade from A to F and my comments on what they got right and wrong.

  1. What are the most important policy and operational changes that would streamline and improve the processing of immigrant visas at U.S. Embassies and Consulates, for both family-sponsored and employment-based immigrant visas?[Grade – C-]

 

Consular processing will likely improve somewhat as a result of the report’s recommendations on improving software and communications. But few recommendations were included that would address serious problems in the system that cannot be addressed with better technology. AILA offered a number of helpful ideas that were mainly ignored. For example, the National Visa Center needs a lot more resources to do its job properly. The I-824 process to notify the State Department to initiate consular processing is woefully slow – 6 to 9 months on average. That process can be re-engineered to dramatically improve it. Persons subjected to lengthy administrative processing delays are largely in the dark about what is happening in their cases and can seemingly do nothing to fix it.

  1. What are the most important policy and operational changes that would streamline and improve the processing of nonimmigrant visas at U.S. Embassies and Consulates, including visitor, student, temporary worker and other nonimmigrant visas?[Grade – C-]

 

There were a lot of fixes that could have been made here, but again it’s mostly tech improvements and improving communications. But there are serious problems with non-immigrant visa processing at US consulates around the world. In fact, more damage is done to the image of the US by people’s experiences at US consulates than almost anything else we can control. Probably the number one complaint people have is being denied visitor or other non-immigrant visas with little explanation and a feeling that the applicant spent a lot of money on the application and wasn’t given a fair chance. The average window interview is usually just three or four minutes long and a denial is only accompanied by a form INA 214(b) letter offering no helpful information on why the application was denied. AILA and others asked for consular officers to provide more specific information in visa denials rather than just a useless template. But this was ignored. Also, AILA asked for a fix to a long-standing problem of L-1 blanket petitions being approved for three years, but L-1 visa approvals being for five years and asking that the two be synchronized. This was ignored.

Finally, a huge, huge opportunity was lost when the suggestion to bring back domestic visa revalidation was ignored. This is the process of allowing people to seek extensions of their visa stamps in the US as opposed to having to fly to a consulate and have it done. This was available for many years until it was stopped in the wake of 9/11. In theory, this was part of a process of reviewing the various parts of the immigration system to ensure security. But it was never restored even though there’s no evidence it was a security risk.

3.What are the most important policy and operational changes that would streamline and improve U.S. Citizenship and Immigration Services (USCIS) processing of the following types of immigrant and nonimmigrant visa petitions?[Grade – C+]  

Family-sponsored immigrant visa petitions – almost no changes were mentioned for family sponsored immigrant visas.

Employment-based immigrant visa petitions– some helpful changes were provided in the White House memo. They included the following:

– AC21 changes to clarify when porting from employer to employer is permitted and clarifying what is the “same or similar” occupation

– A critical change I reported on last month that would let I-140s survive even if an employer attempts to revoke or an employer goes out of business.

– PERM modifications to make the program more forgiving, faster and user-friendly

Unfortunately, a lot of good suggestions were left out. For example, AILA offered the following suggestions

– Automatically extend work authorization upon filing a renewal I-765 EAD application

– Clarify the role of USCIS v. DOL in the employment-based immigrant visa process

– Clarify that a priority date is retained where the previous employer withdraws an I-140

And a big omission is allowing individuals with approved I-140s pending a year or more to file for Employment Authorization Documents. The Administration has already had its memo on this go public and has basically acknowledged that this is in the works. Why leave it out?

Nonimmigrant petitions

Again, some good fixes, but most of the best suggestions were ignored. One suggestion that showed up in many places in the comments was mandating USCIS and other agencies offer deference to prior decisions on cases with nearly identical facts (such as extension petitions). The WH memo has a relatively tepid acknowledgement of this need and has a recommendation stating the following: “Enhance information to encourage reasonable deference to prior adjudications of H-1B and L-1 petitions. DHS will modify form instructions for H-1B and L-1 extensions in order to ensure that petitioners provide documentation of previous adjudications and adjudicators have as much documentation as possible when making determinations.” This is hardly binding and seems to change nothing. A big, big disappointment.

The memo speaks to providing new guidance on agents petitioning for O and P entertainers and athletes. That’s good, but there are so many problems in the adjudication of these cases that it’s puzzling why one relatively small issue is dealt with and no others (such as requiring the work being performed to require someone with extraordinary ability, something that is not in the statute but is in the regulations).

Other changes recommended that were ignored –

– allowing continuing employment authorization for the whole duration of a pending extension application and not just 240 days

– allowing traveling without advance parole for Os, Es, Ps and TNs, as is currently the case for H-1Bs

– allowing spouses of Ls, Es and K-1s to work incident to status as opposed to needing a work card

One good piece of news is the openness to expanding “dual intent” to more visa categories such as F-1s.

Humanitarian petitions and applications (such as U nonimmigrant status petitions, T nonimmigrant status applications, and VAWA self-petitions)

Generally, this was one of the better areas in the report and a lot of helpful changes are included. Clarifying that TPS recipients can apply to adjust status would have been helpful.

H-1B temporary worker visa petitions, specifically, ways to reduce burdens on employers and workers engaging in the H-1B petition process, consistent with protections for U.S. and temporary foreign workers. 

The memo had some good news on H-1Bs. USCIS is to clarify when owners of businesses can petition for H-1Bs for themselves. Clarification on when a license must be provided to get an H-1B is coming. An expanded grace period for workers who are terminated from an employer to have to refile a new petition is also coming. Also, the “known employer” initiative mentioned in the report will likely improve H-1B and L-1 processing. But a couple of big problems in H-1B world were ignored including

– the definition of “affiliated” for claiming H-1B cap exemption. USCIS takes an unnecessarily restrictive view that is really unnecessary.

– the terrible Simeo case which USCIS has adopted as precedent requiring H-1B amendments each time an employee changes locations. This is a huge waste of money and time for employers. It could have been dealt with here.

Finally, the failure to call for expanding premium processing to all non-immigrant and employment-based immigrant categories is disappointing. Premium processing is mentioned nowhere in the report and it is one of USCIS’ success stories.

  1. What are the most important policy and operational changes that would streamline and improve the process of changing from one nonimmigrant status to another nonimmigrant status?[Grade: B]

 

The White House memo did include language about providing more guidance on when H-1B portability is available. And there is a recommendation on allowing automatic work authorization extensions for H-1B1s and E-3s with extension applications pending. It would have been nice to have gotten clarification on the old Hernandez-Schorr correspondence that when one is moving from an H-1B cap exempt employer to a cap subject employer, that portability allows for work authorization all the way through the October 1st start date.

  1. What are the most important policy and operational changes that would streamline and improve the process of applying for adjustment of status to that of a lawful permanent resident while in the United States?[Grade – F]

 

Why ask the question and then include nothing – zero, nada – in the memo on this subject. There were no recommendations about making the adjustment process better. I guess the Administration thinks adjustments are perfect as is and need no improvements.

  1. What are the most important policy and operational changes that would streamline and improve the inspection of arriving immigrants and nonimmigrants at U.S. ports of entry?[Grade – B+]

 

Some good recommendations are in the memo including expanding the availability of Global Entry to more non-immigrants and expanding pre-boarding, pre-clearance inspections at overseas airports. There were some good suggestions ignored including a good one from AILA on xxpanding automatic visa revalidation to those traveling for less than 30 days to any destination and not just Canada, Mexico or adjacent islands.

  1. What are the most important policy and operational changes that would attract the world’s most talented researchers to U.S. universities, national laboratories, and other research institutions?[Grade: C]

 

The few proposals covering this question were pretty vague. For example, a recommendation is included to “Publish a final rule that provides flexibility in terms of documentation that may be submitted to support an EB-1 outstanding professors or researchers petition”. That tells us almost nothing. The big, big problem for a lot researchers these days is the terrible Kazarian case which gives USCIS examiners permission to ignore that statute which says if you can show three categories of evidence to demonstrate extraordinary ability, you’ve met the test. Kazarian basically gives examiners free reign to say that whatever is presented to show extraordinary ability is not enough. This has led to serious abuse on the part of examiners and needs to end. Another suggestion I liked from AILA was to add researchers at national labs to the list of positions eligible for special handling labor certification cases. And the definition of “permanent employment” for post docs should be liberalized to reflect the reality that no positions are permanent when government funds support the work.

  1. What are the most important policy and operational changes that would attract the world’s most talented entrepreneurs who want to start and grow their business in the United States?[Grade – B]

 

We think the White House is close to releasing the parole initiative for entrepreneurs even though little is mentioned in the memo. That’s a common theme. Things we are pretty sure are coming aren’t mentioned which makes people worry about whether they’re really happening or not. At the tail end of the memo, parole is mentioned. Also, guidance on national interest cases for entrepreneurs was mentioned in the November remarks, but is not mentioned in the new memo. There are other changes that could help entrepreneurs that were suggested and ignored which is why the grade is not higher. Extending the initial approval period for startups from one to two years is a good idea. Rescinding the Neufeld memo and simply making the whole issue of owner-entrepreneurs being eligible for the H-1B should have been included as well.

  1.  What are the policy or operational changes that could assist in creating additional immigration opportunities for high-demand professions, such as physicians?[Grade – F]

 

If I could give an F minus I would do so. In fact, yes, this is an F-. The White House just won a huge victory on the Affordable Care Act. We’re already experiencing the worst physician shortage in the nation’s history and it is projected to get a lot worse. Congress is not spending the money to expand the American physician pool (which would take many years to significantly expand when they finally do get around to it). More than 25% of the doctors training in our teaching hospitals are educated outside the US. And yet we have policies that are forcing many of them to leave. Many excellent proposals were presented to the White House – some in person. I should know since I was on a team which came up with many of the ideas. The ideas were endorsed by both the IMG Taskforce and AILA. And every one of them was ignored. It is not an exaggeration to say that millions of Americans would have benefited from the ideas presented and it would cost nothing for taxpayers. A real shame. And a shame that NO recommendations were offered that addressed question #9. An epic fail.

  1. Focusing on the EB-5 immigrant investor visa, what policy or operational changes would (a) reduce existing burdens and uncertainties on the part of petitioners, Regional Centers, and other participants in the program; (b) ensure that this program is achieving the greatest impact in terms of U.S. job creation, economic growth, and investment in national priority projects that the capital markets would not otherwise competitively finance; and (c) enhance protections against fraud, abuse, and criminal misuse of the program by petitioners or Regional Centers?[Grade – C-]

 

A mixed bag here. The EB-5 program has its problems and needs better oversight. But it’s also a good way to get cash to worthy investments when the banking system isn’t enough and the job creation requirement is great for Americans. Not a lot of detail is provided in the memo on forthcoming changes, but making the process of applying for regional center designation more straightforward and allowing B visas for people coming to explore EB-5 investment opportunities are both good ideas. Raising the EB-5 lower investment threshold of $500,000 is actually okay under the statute (I was initially skeptical, but now believe it can be done), but I would rather see incremental increases that wouldn’t have a major disrupting effect on the regional centers.

The big thing that would help the EB-5 program is speeding up the process. It takes about two years for an investor to get the green card after the money is invested. Premium processing is sorely needed. Also, when an investment is unsuccessful, investors should have the opportunity to move money in to a new investment that creates jobs rather than having to start from scratch.

  1. How can labor market related requirements for temporary workers be best tailored to meaningfully protect both U.S. and temporary foreign workers while achieving operational efficiency for both employers and relevant Federal agencies?[Grade – B]

 

This one was ignored in the memo. I’m giving it a B anyway because I could see this being one where action on the part of the Department of Labor would have been more of a problem than a solution.

  1. How should relevant occupational categories, descriptors, and/or data, such as the Department of Labor’s O*NET system (http://www.onetonline.org) be refined and updated to better align the prevailing wage determination process for visas with the evolving job market?[Grade – B]

 

This is another question that was ignored in the memo. Again, I give it a B because even though there are improvements that can be made in the prevailing wage documentation process, I’m nervous that changes could make the situation even worse.

  1. Focusing on the diversity visa program, what are the most important policy and operational changes that would streamline and improve the diversity visa process, including enhancing protections against fraud?[Grade – B]

 

Again, this is a question that was not addressed in the White House memo. But maybe it’s because no one commented. I couldn’t find any organizations that included the lottery in their comments. There are, of course, ways the lottery process could be designed to work better. For example, applicants whose processes are not finished on September 30th end up with no green card in the end even if the delays were not their fault. Processes should be altered to ensure that cases are processed with plenty of time to spare.

  1. What other policy and operational changes would most effectively combat waste, fraud, and abuse in the legal immigration system?[Grade – B]

 

Fraud detection is mentioned several times in the report’s discussion of priorities in the immigration system. But there’s not a lot about fraud in the actual recommendations. No one supports fraud, but the regulating immigration agencies have a checkered history when it comes to combatting fraud. Fraud prevention measures often seem completely disconnected from preventing actual fraud. For example, a leaked 2009 USCIS H-1B fraud detection checklist for examiners listed being a small business as a fraud indicator. And the Department of Labor’s 2007 anti-fraud rule barred employees from paying the attorney fees in PERM cases as an anti-fraud measure without actually explaining why this would be fraudulent behavior. Anti-fraud measures should be carefully tailored to actually prevent fraud without having unintended side effects, something that has been lacking to date.

  1. What are the most important policy and operational changes, if any, available within the existing statutory framework to ensure that administrative policies, practices, and systems fully and fairly allocate all of the immigrant visa numbers that Congress provides for and intends to be issued each year going forward?[Grade – D]

 

There were some helpful recommendations on reforming the Visa Bulletin to better ensure that all Congressionally-allocated green card numbers are used each year. But so much more could have been done to provide relief to people waiting years and years in visa lines. The big proposal that was being promoted by many in the skilled immigrant advocacy community was one that would end the counting of derivatives (spouses and children) against the green card quotas. There is a very good legal argument supporting this proposal that was made by the American Immigration Lawyers Association. I understand that the State Department objected to this view. Perhaps the White House is gun shy about having to defend another measure in court. But if you want to be bold, you have to be prepared to fight. And this is one the White House could have won. It would have made a big difference. Two thirds of employment-based greed card numbers are used by family members. The White House could have pushed the State Department on this and instead let the State Department do the pushing. This measure would have ended the backlogs. A real shame.

  1. What are the most important policy and operational changes, if any, available within the existing statutory framework to ensure that administrative policies, practices, and systems fully and fairly allocate all of the immigrant visa numbers that Congress provided for and intended to be issued, but were not issued in past years?[Grade – F]

 

The White House asked this question and then completely ignored it in the memo. And this one would have made a big difference. 220,000 family and employment-based green cards went unused since the green card quotas were set in 2007. As AILA noted, “Although recapture of unused numbers has previously been accomplished through congressional action, the INA does not specifically prohibit the State Department from exercising its authority to recapture unused visas on its own.” But, like the derivatives proposal noted above, the State Department rejected this proposal as well and the White House was unwilling to take it on. Fail.

  1. From the perspective of petitioners and applicants, which elements of the current legal immigration system (both immigrant and nonimmigrant systems) are most in need of modernized information technology (IT) solutions, and what changes would result in the most significant improvements to the user experience?[Grade A-]

 

One aspect of visa modernization that the report really seems to take seriously is IT modernization and that’s probably because the White House turned to the US Digital Services. There are a number of good ideas listed in the report. The reason I didn’t give it an A is because the report fails to recognize the major problem of the USCIS’ ELIS program – that it is extremely user-unfriendly and USCIS chose to develop the software with no alpha or beta testing with members of the public or with immigration lawyers. Immigration lawyers overwhelmingly eschewed the software because of how difficult it was to use. Unless USCIS changes the way it engages the public in its online case management software, it is not going to succeed.

  1. Which existing government-collected data and metrics would be most valuable to make available to the public, consistent with privacy protections and national security, in order to improve oversight and understanding of the legal immigration system?[Grade – A-]

 

The RFI brought up an important concern – the lack of reliable data on the US immigration system – and the memorandum delivered several useful recommendations to address the concern.