Modernizing and Streamlining Our Legal Immigration System

"Modernizing and Streamlining Our Legal Immigration System for the 21st Century" On the heels of President Obama's executive action of November 20, 2014, the White House released an update this summer on immigration reform entitled, "Modernizing & Streamlining Our Legal Immigration System for the 21st Century." In an effort to streamline and improve the legal immigration system, make use of all available immigrant visa numbers, and modernize the technological infrastructure behind the different agencies within our immigration system, the White House put forth a series of recommendations which will certainly have an impact on immigrants and nonimmigrants, as well as U.S. citizen family members and employers who are looking to sponsor these foreign nationals. Highlighted White House recommendations include the following: • Recommendation: Digitize the Form I-864, the Affidavit of Support Goal: Sponsors and joint sponsors will be able to fill out the form online and enjoy a quicker processing of immigrant visa applications, which currently requires manual data entry. • Recommendation: Allow for the electronic filing and processing of the Form I-130 through United States Citizenship and Immigration Services ("USCIS") Electronic Immigration System. (We noticed that the report seems to be quiet about supporting documentation to the I-130 and how that will be filed if there is a move to electronic filing). Goal: Expedite the transmission of visa petition data from USCIS to the State Department. • Recommendation: Hire additional Department of Homeland Security ("DHS") experts for data collection. Goal: More efficiently collect, analyze, and disseminate immigration statistics. • Recommendation: Revise the monthly Visa Bulletin to estimate better immigrant visa availability and refine monthly allocation of visas during the first three quarters so that fewer numbers are left for the final quarter. Goal: Maximize the number of available visas issued per year while also minimize any potential retrogression. (In order to complete the permanent residency process, there must be an available immigrant visa number to the individual. Congress limits the number of visas available each year, which also includes a per-country limitation. The State Department reports the availability of numbers each month via the Visa Bulletin. Under certain circumstances, the wait for an available visa number could be years. The goal above is to help with predictability and to shorten the wait time.) • Recommendation: Increase job flexibility for individuals with approved I-140s on the path towards citizenship. Goal: Help individuals with I-140s which have been approved for more than 1 year to retain their legal permanent residency eligibility, even if the petitioning employer closes its business or seeks to withdraw the approved petition. (An individual seeking permanent residency based on an employer's sponsorship must be aware that the process is employer specific and job specific. If the job is no longer available, the process could end. There are limited circumstances where the process can continue and the White House is recommending that these circumstances be expanded.) • Recommendation: Provide guidance on job flexibility for H-1B nonimmigrants seeking other H-1B employment (changing jobs or employers). Goal: Clarify the protections afforded by the American Competitiveness in the Twenty-First Century Act of 2000 ("AC-21"). (An individual seeking to work in the U.S. under the H-1B program is also limited to a specific employer and specific job opportunity. The White House is recommending clarifying under what circumstances there are exceptions.) • Recommendation: Extend grace periods for certain nonimmigrant workers whose period of authorized stay has expired. Goal: Provide nonimmigrant workers a longer period to find new qualifying specialty employment without losing their nonimmigrant status. (Currently, when an individual's purpose, such as working for a specific employer under the H-1B program, ends, there is no grace period and the person is supposed to leave the U.S. right away.) • Recommendation: Clarify which H-1B nonimmigrants are exempt from the statutory cap. Goal: Allow H-1B nonimmigrants who contribute to U.S. research and the education of Americans the ability to remain in the U.S. (Currently, there is a limited number of new H-1B visa numbers each fiscal year, i.e., 20,000 for those with U.S. advanced degrees and 65,000 for the general pool. We have been running out of these numbers very quickly each year. Those employers who are institutions of higher education, or their affiliated non-profit organization, non-profit research organizations, or government research organizations are exempt from this limitation however. The expansion of the exemption would be very helpful.) • Recommendation: Expand the use of Automated Passport Control ("APC") kiosks and Mobile Passport Control Applications. Goal: Allow passengers to scan their passports and enter their customs declarations at kiosks or on their phones, which can reduce wait times to interact with CBP officials by 45%. • Recommendation: Prepare an implementation plan and timeline for a permanent "Known Employer Program." Goal: The Known Employer Program is currently in a pilot phase and allows employers to pre-file petitions with USCIS to certify employer specific requirements before filing petitions on behalf of their employees. (This would be a great benefit as employers will not have to prove over and over again their legitimacy before the government.) • Recommendation: Modernize and streamline PERM adjudications by updating recruitment methods, correcting minor errors in applications, and disclosing application outcome to immigrant workers. DOL to also implement a plan to streamline PERM audits. Goal: Better align the PERM program with the objectives of the immigration system as well as the needs of employers and employees. (Vince is currently on AILA's National DOL Liaison Committee and he witnesses firsthand the frustration that employers and attorneys across the country are experiencing with the system. The proposed changes will be a welcome to help make the process less burdensome and more in line with real world practices. It is our understanding that new regulations may be coming as soon as this December. Please stay tuned.) • Recommendation: Simplify RFE templates in furtherance of USCIS's 2010 RFE project. Goal: Offer clear, concise, and consistent RFE templates. • Recommendation: Provide guidance to H-1B petitioners and beneficiaries where the beneficiary owns or co-owns the petitioning company. Goal: Clarify how to demonstrate an employer-employee relationship in these situations. (In the past, individuals who had an ownership interest in a U.S. company could still file a petition for an H-1B visa. In 2010, USCIS issued a memo that put this into question and required petitioners and beneficiaries to have a more strict, traditional employer-employee relationship. The anticipated clarification would be a welcome, especially for some entrepreneurs who may be able to use the H-1B visa.) • Recommendation: DHS to clarify for petitioners which nonimmigrant classifications permit for dual intent. Goal: Particularly in cases where U.S. employers seek to sponsor F-1 students, articulate when students are eligible to maintain nonimmigrant status while pursuing LPR status. • Recommendation: Provide greater clarity and certainty to streamline nonimmigrant visa employment petition returns to USCIS from consular posts. Goal: Provide transparency for petitioners through the publication of refusal rates for petition-based nonimmigrant visas. The above are just some highlights of recommendations that the White House has made. Please stay tuned to see how things unfold. Please also continue to check our website regarding the latest changes and/or sign up to follow Vince on Twitter @immigrationUSA for even more late breaking information. Special thanks to Clark Lau team member Peter Koutroubis for contributing to this post.