The White House released a 46 page report outlining what visa modernization initiatives it is pursuing based on the President’s November 2014 announcement of plans for taking executive actions on a variety of immigration subjects. Earlier this year, USCIS issued a Request for Information calling on the public to make suggestions. More than 1600 comments were received. Most recommendations were expected, but a few were new. Some expected recommendations were very vaguely mentioned. For example, we are expecting a lengthening of STEM OPT time, but the report only says that improvements are going to be made to the OPT program without specifying what is going to change. We also saw the I-140 portability change I reported on last month, but the early EAD application part is not specifically referenced (though hinted at).
The following is my summary of the document:
I. Executive Summary
President’s November 2014 announcements included a call to modernize the legal immigration systems for high-skilled workers, entrepreneurs, students and families. The announcements were accompanied by a Presidential Memorandum entitled “Modernizing and Streamlining the US Immigrant Visa System for the 21st Century”. It called for
1. reducing government costs, improving services, reducing burdens on employers and combating waste, fraud and abuse in the system;
2. ensuring that all visa numbers allocated by Congress are used, consistent with demand; and
3. modernizing the IT infrastructure underlying the visa system.
DOS, DHS and the White House (WH) made internal assessments, engaged with outside stakeholders and reviewed suggestions that were a part of a Request for Information. 1,650 responses were received from the public.
The report’s major recommendations:
Modernizing Our System for Efficiency and Accessibility
The current system is almost entire paper-based and some documents change hands at least six times. Tech needed to transform system.
– create a cross-agency digital services team to work together to implement the “modernized immigrant visa project”
– redesign systems with “an eye towards a human perspective and accessibility for users”
– create a communications task force to draft clear, plain-language instructions
– adopt best practices for software development and modernize tech to improve content management
– create an interagency task force to enhance data collection in order to increase transparency
Streamlining Our Legal Immigration System
While legislation is needed to increase statutory green card caps, the following recommendations can improve existing programs:
– improve the issuance of employment-based immigrant visa numbers
– increase efficiency for international arrivals via better tech and focusing on high-risk travelers
– implement a pilot “Known Employer Program” allowing certain employers meeting certain requirements to pre-establish certain petitioner requirements
– improve the integrity of the EB-5 program and increase the minimum investment [query – this seemingly requires legislation]
Strengthening our Humanitarian System
Existing humanitarian relief avenues don’t reflect current law and need improvement:
– allow family members of Filipino veterans to seek parole
– simplify systems for domestic violence survivors to petition for VAWA visas
– implement statutory provisions for victims of crime and trafficking
– provide guidance and consistency for vulnerable populations seeking immigration relief
II. Introduction
A. Background and Methodology
The President directed DOS and DHS to lead an effort across the Federal government to develop recommendations focused on three broad areas:
1. Consult with a variety of private and public actors to streamline and improve the legal immigration system with a focus on reducing government costs, improving service, reducing employer burdens and combatting waste;
2. Consult with immigration law experts to ensure that administrative policies, practices and systems use all of the immigrant visa numbers; and
3. Consult with private and public tech experts regarding modernizing the visa system’s IT infrastructure.
1,650 comments in response to Request for Information. Responses provided recommendations to address
– long wait times
– employment restrictions
– the separation of families due to the long application process
– lack of transparency and predictability
– systemic and practical barriers for visa applicants
– challenges for domestic violence and trafficking survivors
– outdated tech and online user accessibility
B. Benefits of Legal Immigration
This section outlines the many positive contributions legal immigrants make to American society.
C. Understanding our Immigration System
This section outlines the various immigration roles of USCIS, ICE and CBP as well the Department of State and the Department of Labor.
D. Intersecting Principles ot Promote Integrity and Protect the Nation
This section discusses the role of various agencies in preventing fraud and insuring the integrity of the immigration system.
III. Progress on President Obama’s November Executive Actions
This section outlines actions that have already moved forward including
– work authorization for certain H-4 spouses
– the L-1B policy memorandum
– release of a DOL memorandum regarding protection of victims of crime and human trafficking
– release of a notice of proposed rulemaking on 7/15/2015 to expand the provisional waiver program to all statutory eligible classes of relatives for whom an immigrant visa is immediately available (current rules limit to just certain relatives of US citizens); the final regulation will be published in Spring 2016; DHS working to clarify definition of extreme hardship
DHS is proceeding with two other improvements:
– DHS will propose a parole program for entrepreneurs who would provide a “significant public benefit”; example: because they have been awarded substantial US investor financing or hold the promise of innovation and job creation through the development of new tech. DHS will also clarify guidance regarding the standard by which national interest waiver-based green card petitions will be adjudicated for those benefiting the US economy.
– DHS is evaluating the OPT program to determine how to enhance the program in a manner that strengthens the program and improves training for students who will enhance US innovation and competitiveness while protecting US workers.
IV. Modernizing Our System for Efficiency and Accessibility
A. Information Technology Processing
The immigration system is almost entirely paper-based and because so many agencies and offices are involved in adjudicating petitions, documents move no fewer than six times over thousands of miles before a case is completed. DOS and USCIS have started reform initiatives. USCIS’ Electronic Immigration System (ELIS) used a traditional waterfall methodology which has been slow and too reliant on a single vendor’s proprietary technologies. It has not worked as anticipated.
USCIS has been rebuilding ELIS using a modern technology stack, industry-leading security and privacy practices and real-time connections into other systems across DHS and other government agencies to screen for fraud and misrepresentation, security and safety risks and criminal activities.
DOS and USCIS are preparing to launch the modernized immigrant visa (MIV project) which aims to improve the visa applicant experience. it will offer a suite of applications to more efficiently process and manage electronic immigrant records. Five consulates are testing in 2015 and more will join in 2016. In conjunction with this project, the US Digital Service (USDS) has been working with stakeholders to assess how people experience the immigration process and has generated the following recommendations.
Recommendation 1: Create a cross-agency digital service team to support the implementation of the MIV project.
Recommendation 2: Simplify the applicant experience through increased information sharing across agencies and increased accessibility through electronic filing of forms and payments. Web sites for different agencies that play a role in a single visa application are inconsistent and confuse applicants. The following actions will improve the applicant experience in the MIV process:
– offer to collect the USCIS immigrant fee used to pay for the printing of a green card at the same time DOS collects the immigrant visa fee. Those fees should be payable via debit and credit cards in addition to bank draft. Separating the fees for each agency should happen on the back-end.
– digitize the Form I-864 Affidavit of Support so that sponsors can fill it out online and the manual data entry work can be avoided
– Allow electronic filing and processing of Form I-130, the Petition for Alien Relative, through USCIS ELIS.
– Improve visa interview appointment scheduling by increasing collaboration between the NVC and consular posts
Recommendation 3: Redesign systems based on people, not form numbers. DOS and USCIS shall take the following actions:
– create a roadmap and single vision for what the applicant’s immigration process looks like from start to finish as a guide for designing and building new tools
– build intuitive electronic tools that guide and assist applicants through the online immigration application process.
– streamline the amount of data an applicant must re-enter repeatedly.
– provide applicants with a single dashboard that allows them to view their case status in the overall process. Currently, applicants must check separately with DOS and USCIS.
Recommendation 4: Convene a short-term communications task force charged with making process instructions clearer, reader-friendly, holistic and actionable. The task force will
– review all instructions, consult with agency process experts, legal counsel, usability experts and applicants to produce one instructional resource that clearly explains how to complete an application
– translate the immigrant visa portions of travel.state.gov into Spanish and develop video tutorials on filling out common forms. DOS will study adding more languages after that
– coordinate joint outreach activities between DOS and DHS with a focus on targeting US petitioners about early activities that affect later visa processing.
Recommendation 5: Strengthen public communications strategies about the visa process overseas and in the United States. DOS lacks a consistent way to communicate with applicants, lawyers and community groups about their processes. DOS will
– build on examples of successful engagement on consular issues by proactively reaching out to share visa process information with the public via messages and media that resonate with them with the goal of providing information and engaging in a dialog
– increase public outreach and engagement efforts by consular posts including via existing post websites, local organizations and other channels tailored to local conditions in order to engage visa applicants and ensure a diversity of feedback
Recommendation 6: Adopt modern best practices for software development, such as deploying in a flexible hosting environment and using monitoring systems. Currently, government immigration software applications are hosted in government data centers rather than using cloud providers. DHS and and DHS will explore the following:
– deploy government services on flexible infrastructures where capacity can be increased in real-time to meet traffic spikes and begin moving applications to the commercial cloud (insuring protection of personal data)
– create best practices for agencies to monitor how well their services are working
Recommendation 7: Modernize and simplify technology stacks. DOS and USCIS should upgrade and modernize their current technology stack and its components across all MIV pilot applications and the two agencies will
– implement system upgrades to the Consular Consolidated Database (CCD), the DOS software and data storage system for requesting consular services
– launch the new Immigrant Visa Content Service (IVCS), a content management system for immigrant visa case file data that can then be accessed through the entire course of visa processing.
Recommendation 8: Enhance State and DHS interagency collaboration on data collection regarding feedback from the public on public-facing systems.
B. Transparency and Data Publication
While the various immigration agencies publish statistics, policymakers and the public would benefit from having more robust statical information about the immigration system. DHS, DOS and DOL must “re-conceptualize” how data are collected, stored and disseminated. The following are recommendations tied to this goal:
Recommendation 1: Create an interagency working group to evaluate and improve data collection and publication. The group will
– conduct a comprehensive assessment of current immigration statistics
– evaluate the capacity of agencies to reform and update the collection and publication of immigration statistics
– consult with other US statistical agencies to advance methods to collect, share and cross-reference information
– develop recommendations to enhance data collection and publication
– execute a one-year plan to implement recommendations
Recommendation 2: Increase DHS capacity and resources dedicated to the collection, analysis, and dissemination of immigration statistics.
Recommendation 3: Clarify statistical policy guidance for USCIS adjudicators collecting data.
Recommendation 4: Set up governance boards to create data collection standards.
Recommendation 5: Document procedures used to collect data and identify areas for improvement.
Recommendation 6: Enhance publication of enforcement data by DOL.
V. Streamlining Our Legal Immigration System
A. Legal Immigration Options
This section provides an overall explanation of the types of legal immigration options available in the immigration system.
B. Employment-Based Immigrant Visa Issuance
The following recommendations will help ensure
– that all immigrant visas authorized by Congress are issued when there is sufficient demand
– better account for visa availability for persons seeking to adjust status to lawful permanent residence while remaining in the US, and
– provide additional job flexibility and portability for nonimmigrant workers affected by immigrant visa backlogs
Recommendation 1: Update the monthly Visa Bulletin. Later in 2015, DOS will revise the monthly Visa Bulletin to better estimate immigrant visa availability in order to provide needed predictability to nonimmigrant workers seeking green cards. This will ensure that the maximum number of green cards are issued each year and will minimize the potential for visa retrogression.
Recommendation 2: Refine monthly allocation of visas. DOS will increase monthly visa allocation totals during the first three quarters of the fiscal year in order to ensure that fewer numbers are left in the final quarter and reduce the likelihood that the mandated maximum number of green cards will not be used.
Recommendation 3: Improve numerically controlled immigrant visa appointments. The NVC will alter how immigrant visa appointments are made in the last month of the fiscal year (September) to ensure there is sufficient time to consider enough applications to max out green card quotas.
Recommendation 4: Clarify and expand protections for employment-based immigrants and nonimmigrants. DHS will finally publish an AC21 regulation that will
– increase the ability of workers waiting for a green card to change jobs or receive promotions by clarifying what is “same or similar” employment
– further increase job flexibility by enabling people with employment-sponsored immigrant visa petitions that have been approved for at least a year to retain eligibility for a green card despite the petitioning employer closing its business or seeking to withdraw the approved petition
– provide increase guidance on job portability provisions for H-1B workers
– extend grace periods for certain nonimmigrant workers whose authorized stay has expired, including because their jobs have been terminated, to better allow them to obtain other employment without losing their nonimmigrant status [note – this is a concept not previously announced by the White House]
– clarify when H-1B nonimmigrants may begin working without requiring licensure
– provide increased guidance on the maximum period of admission for H-1Bs including for those on a green card path and enable H-1Bs to recapture time spent outside the US
– clarify which H-1B nonimmigrants are exempt from the statutory cap to ensure that those nonimmigrants who are contributing to US research and the education of Americans remaining the US; and
– protect H-1Bs who suffered retaliatory actions because they have reported labor violations committed by their employer
C. Immigrant Investor Visa
Over the last four years, USCIS has made significant enhancements to the administration of the EB-5 program including creating new specialized intake teams with economic expertise and program requirements and issuing updated policy guidance. But opportunities remain to further improve the integrity and impact of the program including measures to enhance protections against fraud and abuse, ensure the program is maximizing job creation and economic growth and reducing unnecessary burdens and uncertainties on the part of petitioners, Regional Centers and other program participants. The following are recommended changes to the EB-5 system:
Recommendation 1: Update standards for the EB-5 Program. Changes will include requiring conflict-of-interest disclosures by Regional Center principals, enhancing background checks and public disclosure requirements and increasing the minimum qualifying level of investment. DHS will also improve the Regional Center application process.
Recommendation 2: Clarify options for potential EB-5 investors to obtain visitor visas. DOS will amend the Foreign Affairs Manual to clarify that potential EB-5 investors can obtain visitor visas to examine or monitor potential qualifying investments if they otherwise qualify for the visitor visa.
D. International Arrivals Process for Visitors and Immigrants
Providing foreign visitors, workers and immigrants arriving at our borders with a positive experience is an important goal of the US. In order to further current efforts in this regard, DHS and DOS will implement the following recommendations:
Recommendation 1: Expand the use of Automated Passport Control (APC) kiosks and Mobile Passport Control Applications. These system allow passengers to scan their passports and enter customs declarations at kiosks or on their phones which will reduce lines by as much as 45%. CBP is working to expand APC tech to green card holders, visa waiver travelers and certain temporary visas.
Recommendation 2: Consider allocating greater resources for screening of high risk travelers and streamlining certain nonimmigrant visa application protocols for low-risk travelers (e.g. allowing them to use the existing Interview Waiver Program (IWP) for consular visa applications. The IWP may be expanded to include
– individuals meeting select DHS security requirements and who have previously obtained a nonimmigrant visor have a valid ESTA authorization with fingerprints on file, and are applying for select visa categories including B-1, H-1B, I, and J-1 visas (except summer worker applicants)
– individuals who are returning student visa holders and their dependents (F-1/F-2) continuing in the same program and approved in SEVIS
– individuals who are enrolled in the Global Entry or NEXUS programs and
– individuals who apply for B-1/B-2 visas who already possess valid nonimmigrant visas in another category
Recommendation 3: Expand Global Entry options for travelers. DHS will continue to seek partnerships with other foreign governments to allow more Visa Waiver Program travelers and visa holders to access the program.
Recommendation 4: Expand pre-clearance with pre-boarding inspection. CBP pre-inspects travelers at 15 airports in six countries. DHS will enter into negotiations to expand pre-clearance to new locations.
Recommendation 5: Eliminate the need for air passengers to complete a paper Customs Declaration form. This would mean passengers would be able to leave the airport after collecting their luggage and not have to wait in a second line to exit.
E. “Known Employer” Pilot Program
On January 8, 2015, DHS announced plans to start a “Known Employer” pilot program to make it possible for employers meeting strict criteria of good corporate citizenship and immigration compliance to have a streamlined application process where USCIS would not re-adjudicate corporate bona fides in each new application.
Recommendation 1: Improve visa adjudication times by streamlining the collection of information. The pilot program will enable DOS to access and use the data in order to reduce adjudication times.
Recommendation 2: Create a prototype for testing and employer awareness.
Recommendation 3: Publish a report on the program’s effectiveness and integrity.
Recommendation 4: Prepare an implementation plan and timeline for a permanent Known Employer Program.
F. Exchange Visitor Program
In order to enhance the Exchange Visitor Program, in particular the summer work travel program, DOS will implement the following recommendations:
Recommendation 1: Create additional protections for the Exchange Visitor Program. DOS will publish a regulation to enhance protections for J-1 visitors at their host placements and in their housing, strengthen cultural activity offerings and increase overall support to summer work travel participants at each stage of the program process.
Recommendation 2: Continue to improve the Summer Work Travel Program consistent with the GAO February 2015 recommendations. The 2015 report recommended DOS pursue a variety of changes to improve the summer work travel program.
G. Additional Improvements
Recommendation 1: Modernize and streamline PERM adjudications. DOL will issue a new regulation to better align PERM with the objectives of the immigration system and the needs of workers and employers including updating recruiting method, correcting minor errors and disclosing application outcomes to immigrant workers. DOL will also continue to streamline the processes, including audit review, in order to reduce the pending audit caseload and allow for faster adjudication of audited cases.
Recommendation 2: Enhance opportunities for certain employment-based immigrants and nonimmigrants. DHS intends to
– publish a final rule that provides flexibility in terms of documentation that may be submitted in support of EB-1 outstanding researcher or professor petitions; include H-1B1 and E-3 in the list of class authorized for employment incident to status with a specific employer; and allows H-1B1, E-3 and CW-1 nonimmigrants with up to 240 days of continuing work authorization beyond the expiration date noted on their Form I-94 while a timely extension request is pending
– clarify guidance for certain nonimmigrants with extraordinary abilities and internationally recognized entertainers and athletes, namely O and P petitions filed by agents and sponsors acting on behalf of a beneficiary
– simplify RFE templates
Recommendation 3: Provide greater clarity and certainty to H-1B beneficiaries and their employers. DHS will
– assess whether there is a way for H-1B workers to confirm submission of a petition filed on their behalf as well as request status updates on such filings
– amplify and engage in robust outreach to ensure H-1B employers and beneficiaries understand how to demonstrate an employer-employee relationship where the beneficiary owns or co-owns the petitioning company
Recommendation 4: Enhance information to encourage reasonable deference to prior adjudications of H-1B and L-1 petitions.
Recommendation 5: Strengthen employer support for US-born workers in STEM fields. The National Science Foundation and other agencies will work with USCIS to to strengthen the ability of employers sponsoring high-skilled worker visas to simultaneously support education and training to grow the next generation of American workers in STEM fields.
Recommendation 6: Clarify which nonimmigrant classifications permit for dual intent. Regarding F-1s, DHS will clarify when US employers may directly sponsor students for LPR status. DOS will amend the FAM to state that the likelihood that a student may change or just status in the future is not a basis for denying a visas.
Recommendation 7: Provide greater clarity and certainty to streamline nonimmigrant visa employment petition returns to USCIS. 2% of USCIS approved NIV petitions are refused by consular posts and returned to USCIS. DOS will periodically publish refusal rates for petition-based NIVs and ensure that guidance is publicly available to provide transparency for petitioners.
VI. Strengthening Our Humanitarian System
A. Parole for Certain Family Members of Filipino Veterans
Recommendation: Allow certain family members of Filipino veterans to seek parole
B. Self-Petitioners under the Violence Against Women Act of 1994 (VAWA)
VAWA allows certain spouses and children of US citizens and green card holders or parents of US citizens to seek green card status without the abuser’s knowledge.
Recommendation 1: Allow concurrent filing for work authorization
Recommendation 2: Clarify for consular posts that the public charge ground of visa ineligibility does not apply in VAWA cases.
Recommendation 3: Clarify requirements and processes for Cuban VAWA self-petitioners.
Recommendation 4: Clarify Access to Services Necessary to Protect Life or Safety.
C. Work Authorization for Battered Spouses
Recommendation: Publish final guidance to implement work authorization for certain battered spouses.
D. Victims of Crime
Recommendation 1: Provide clarity for victims of crime seeking to obtain U nonimmigrant status.
Recommendation 2: Clarify the public charge exemption for U nonimmigrant petitions.
E. Victims of Human Trafficking
Recommendation: Modify requirements and procedures for individuals seeking T nonimmigrant status.
F. Children Who Age Out
In order to provide consistency and clarity in the adjudication of Child Status Protection Act of 2002, the following actions are recommended:
Recommendation: Clarify when “extraordinary circumstances” might exist allowing an exception to the normal rule at a CSPA beneficiary must seek to acquire a green card within one year of visa availability.
G. Vulnerable Populations at Consular Posts
Recommendation 1: Consistently process immigrant visa cases raising humanitarian concerns across agencies. In other words, when one agency determines a case merits expedited processing, other agencies will act accordingly.
Recommendation 2: Improve and standardize interview practices for applicants with mental and physical disabilities.