On August 6, 2014, the American Immigration Lawyers Association sent a letter to President Obama recommending administrative fixes or executive action to tweak the business immigration system in light of Congressional failure to pass an immigration reform bill. The list of recommended actions are within the realm of administrative law and existing statutes. Only Congress can change or amend statutes, including underlying visa categories, requirements and numbers. However, within the confines of those statutes, the administration, charged with carrying out the law, can make regulatory or policy fixes so long as they are consistent with statute. All federal agencies routinely issue implementing regulations and policy memos interpreting statutes and regulations. However, there is only so much the executive branch can do short of Congressional action required to change statutes. This post focuses on AILA’s recommended administrative fixes for business immigration.

Create Better Nonimmigrant Pathways for Entrepreneurs.

It has become harder for entrepreneurs to use the current immigration categories. In particular, the H-1B category requires an “employer-employee relationship” that USCIS has interpreted in a January 2010 memorandum. Historically, immigration law has treated a corporation as an entity separate and apart from its shareholders, permitting an owner-entrepreneur to found a corporation and the corporation to petition for the owner as an employee. The 2010 memorandum interprets the term “employer-employee relationship” for H-1B purposes to require the entrepreneur to give up significant control to a corporate board or to some other management entity. This is not the modern way of forming and growing start-ups. It is especially difficult if the person with the big idea and a big dream for a business is the foreign national who is forced to give up control of his or her dream. This can be a turn off to foreign entrepreneurs wanting to grow a company in the United States. AILA advocates that USCIS abandon this interpretation and adopt more flexible factors that can establish an “employer-employee relationship” that exist elsewhere in the law. This is important nationally to attract entrepreneurs. For example, in Seattle, Washington State, 19% of businesses are owned by foreign nationals (and 15% statewide).

AILA also advocates that USCIS enable more entrepreneurs to use the O-1 “extraordinary ability” nonimmigrant category and EB-1 extraordinary ability category by formally recognizing entrepreneurship as a valid basis for the O-1 and EB-1. This should include providing better information on the types of evidence that are unique to entrepreneurs that may establish eligibility for O-1/EB-1 status. Further, AILA advocates that entrepreneurship, job creation and potential economic development be recognized as favorable factors in adjudicating EB-2 “National Interest Waiver” (NIW) petitions.

Amend the Definition of “Affiliated or Related” to Provide Greater Relief from the Restrictions of the H-1B Cap.

USCIS received approximately 172,500 cap-subject H-1B petitions during the one-week April 2014 filing period for FY2015. The annual cap is only 65,000 visas (plus 20,000 for those with US Masters degrees.). These numbers are set by statute, i.e., Congress. Thus, USCIS had to hold a lottery. The H-1B program is a game of chance when the economy is growing and employers are hiring, with no predictability for employers to plan staffing. Further, there is only a one week period in April in which to file with this type of demand. Even then, if your candidate is selected in the lottery, the job cannot begin in H-1B status until the October immediately following the April filing period. What if you found your candidate in June or August or December? You’ll have to wait until the following April to file for a job that can’t begin until October! It’s outrageous! It’s hard to keep a straight face as an immigration lawyer when trying to explain the ridiculousness of this situation to a baffled employer who has found the perfect candidate to work on a project NOW.

Thus, AILA argues, until Congress fixes the numbers, USCIS could ease the high demand for H-1Bs loosening up its interpretation of cap-exempt qualifying nonprofit entities. Currently, they must be deemed to be “affiliated or related” to institutions of higher education, “through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.” This definition is very narrow and impacts teaching hospitals and other nonprofit entities. A broader definition is needed because more universities are spinning off private start-ups including, from incubators, that help grow, mentor and nurture new businesses in our communities.

Clarify that Established Facts Should Not Be Re-adjudicated Absent Fraud or True Gross Error.

Every immigration practitioner has experienced a huge jump in Requests for Evidence (RFEs) in all kinds of cases, but especially with regard to H-1B and L-1 visa petitions. Receiving an RFE during the extension process is mystifying given a prior approval. RFEs cost the employer time and money. Absent clear error or fraud, AILA advocates that USCIS limit the number of RFE requests when there have been no changes in relevant facts. Likewise, AILA asks that in the O-1 to EB-1 extraordinary ability, or in the L-1A to EB-1 executive/manager process, that established facts not be re-adjudicated absent error, fraud or change in facts.

Expand Premium Processing to Include More Employment-based Benefit Requests.

USCIS essentially extorts a $1225 filing fee for the privilege of having some work visa petitions processed within 15 business days. You don’t want to pay the fee? You get to wait months for your case to be decided. Even if you pay the fee, you might still receive an RFE on day 14. However, premium processing, for those employers that can afford it, should be extended to all visa categories. For example, they are not presently available for Australian E-3s or EB-2 national interest waivers. The overriding theme is that employers need some predictability and timeliness in adjudications when it comes to staffing projects.

Issue Guidance That Expressly States that the Nationality of a Petitioner or Beneficiary Is Not to Be Taken into Consideration During the Course of an Adjudication.

According to a March 2014 report by the National Foundation for American Policy (NFAP), the overall rate of L-1 denials continues to increase, with the majority of denials impacting India-based petitioners and Indian beneficiaries. USCIS denied more new L-1B petitions for Indians in FY2009 (1,640) than in the previous nine fiscal years combined (1,341 denials between FY2000 and FY2008). AILA advocates that USCIS should not consider employee nationality in L and H1B petitions.

Do Not Count Derivatives Toward the Overall Visa Quotas.

AILA states in its letter to President Obama: “Although derivative spouses and children (unmarried and under 21) have long been counted toward the visa quota, IMMACT90 deleted the statutory language that compelled their inclusion. Nevertheless, the government has continued to count derivatives toward the quota. Counting the principal immigrant and his or her derivatives as a single family unit for purposes of the worldwide cap set forth in INA §201 would reduce the current immigrant visa backlogs in both the employment- and family-based preference categories.” This would be a particularly important fix because unused visas would then be used to shorten existing backlogs for principals stuck in the employment based quota system, especially Indian and Chinese nationals and anyone trying to immigrate with a bachelors degree or less as a minimum requirement to perform the job (EB-3).

Permit Individuals Who Are Eligible for Adjustment of Status to “Pre-Register”
When an Immigrant Visa Petition Is Approved.

AILA suggests that USCIS permit applicants for adjustment of status who are still waiting for the quota to become current but who have approved I140 petitions be allowed to “pre-register” for adjustment so that USCIS can get a better count of who expects to immigrate permanently. And, this would allow applicants to gain work authorization and advance parole to travel while waiting for the quota to become current. Once the quota became current, they could complete the adjustment process and finally earn a green card.

In sum, AILA has advised President Obama about how the administration could make regulatory changes, policy memo or adjudication changes, or executive orders to tweak business based immigration so that it can be more accommodating to entrepreneurs and employers using existing visa categories until Congress makes more fundamental statutory changes.