Yesterday the USCIS released its FY 2009 immigrant visa numbers. More than a million people legally immigrated to the United States in FY 2009. Almost 60% of those folks did so through the adjustment of status process, meaning they were already in the U.S. when their place in line was reached. While not disclosed by USCIS, the supposition is that a number of those folks were actually out of status or, even undocumented, and were able to adjust status using INA 245(i), thePublish Post penalty law still available to anyone who was a direct or derivative beneficiary of an immigrant visa petition or labor certification filed before April 30, 2001.

Bernie Wolfsdorf, our President during this tumultuous year is my Immigration Hero today.

Last year, the 9th Circuit Court of Appeals issued a decision that would have terrible repercussions down the road for anyone applying for an Extraordinary Ability Petition (“EB-1″) at the California Service Center (“CSC”). In Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009), a panel of the 9th Circuit Court of Appeals allowed the CSC and the Administrative Appeals Office (“AAO”) to basically “make up law” as it pertained to the EB-1 category, and set a precedent for the USCIS to do it in other areas (like the recent “Neufeld” H-1B Memo).

Bernie, who hates injustice anywhere, took this case on pro bono to seek a rehearing in the 9th Circuit. Together with the terrific lawyers in his office, colleagues around the United States, and a brilliant amicus brief from the American Immigration Council (the AIC’s brief in this case was exceptional–a key to this victory), a Petition for Rehearing was submitted late last year. The Petition was well done, well argued, and most importantly, the right thing to do at the right time.

Today, the 9th Circuit issued a new decision in Kazarian v. USCIS. While the decision did not reverse the denial of the EB-1 petition, it did vacate the language of the previous decision, and laid down the law to the USCIS. These words will live on in many future court decisions, and should be burned bright into the minds of every USCIS Adjudicator, Supervisor and Service Center Director:

. . . . neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5, [citing] Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008).

WOW! Could this “rule” be spelled out more clearly? The message to USCIS is clear. FOLLOW THE LAW. DON”T MAKE THINGS UP! The challenge to each of us now, is to take this precedent and begin bringing all of the “made up” requirements that USCIS has been putting in RFE’s and denials over the last several years to the Federal Courts, and seek true justice for our clients. Even if that means doing it pro bono.

Every immigration lawyer and every prospective petitioner for immigration benefits owes our President, Bernie Wolfsdorf, a debt of gratitude for not only taking on injustice, pro bono, and fighting to correct a wrong, but for doing so in the midst of what I personally know to be the busiest year of his life.

Bernie. You are my Immigration Hero. There is a special place in heaven for people like you.

By Eleanor Pelta, AILA First Vice President

Our labor certification system requires a U.S. employer to undertake an individualized test of the local labor market for availability of qualified U.S. workers for a particular position before offering the position to a foreign national candidate. This common first step in the green card process for employer-sponsored immigrants has been around since the days when putative immigrants waited abroad for the completion of the entire process before entering the U.S. (which, at that time, didn’t take ten years or more.) The architecture of the system may have made sense back then; it doesn’t now.

The Department of Labor views the labor certification system, now known as “PERM,” as a process through which it can implement its mission to protect U.S. workers. While it is clear that this is one of DOL’s central responsibilities, I view the PERM process as more than this. DOL must protect the wages and working conditions of U.S. workers and ensure that they are treated fairly and that opportunities for employment for such workers are maximized. DOL must also enable U.S. employers to access skills and talents that are not present in the U.S. labor market. U.S. employers are users or, if you will, customers of the system. Our economy benefits by DOL’s ability to nimbly and effectively walk the line between safeguarding the U.S. labor market and recognizing the legitimate needs of U.S. employers for talent to help them grow and adapt. Unfortunately, the current PERM system accomplishes neither goal.

Due in equal part to the very persnickety PERM regulations and undue processing delays, the PERM labor market system has become a game of “Gotcha” for employers. They are expected to undertake a complex and expensive recruitment campaign which is completely divorced from the way employers recruit in the “real world” (newspaper ads? paper postings?) Any ministerial error in the completion of the PERM attestation form –even one that bears no relationship to the recruitment for U.S. workers that the employer actually undertook–can be a basis for denial. Did the employer fail to put its name or the job location in its internal posting? Gotcha! Denied, even though the internal posting is done at the job site itself. Was there an error on the dates of advertising on the PERM form? Gotcha! Denied, even though the employer might have provided, on audit, proof of the correct dates.

There are also additional “rules” that seem to emerge through DOL adjudication and FAQ’s, a veritable field of land-mines for the unwitting employer. There is general confusion as to how to describe alternate job requirements on the PERM form, and employers are legitimately concerned about this, given that the wrong word formulation can lead to a denial. Gotcha! There has been a spate of recent PERM denials based on a surprising new policy decision by DOL, that employers may not use wage ranges that begin with the prevailing wage at the lower end and include the offered wage, a clear but unannounced departure from prior practice. Gotcha! An AILA member recently reported a PERM denial because the foreign national did not currently work for the employer. Gotcha! There has never been a requirement that the foreign national currently work for the sponsoring employer, but DOL seems to be taking a new tack here as well.

Apart from the inherent problems with the inflexibility of the system, its inability to allow employers to correct errors and provide explanations, and the lack of adjudicatory predictability, these denials –which have nothing to do with the essential question of whether the employer conducted a fair and valid recruitment campaign –become extremely problematic for employers because they arrive after 9 months of adjudication time—or much longer if the case is denied after an audit. While the denials state that the employer is free to re-file rather than appeal the decision, a denial after such a lengthy adjudication time puts the employer in the position of choosing between a lengthy appeals process (2 years or more) with an unpredictable outcome and the burden and expense of a new PERM, including a new recruitment campaign, as the original ads will certainly be stale. DOL’s statement encouraging employers to refile would be more welcome and less laughable if PERMs were adjudicated within several weeks, rather than several months, so that employers could correct errors without having to re-advertise.

Clearly, PERM has become a ponderous, lengthy and unduly complicated process. It is difficult to see how PERM’s twists and turns help a U.S. job seeker. Clearly a determination after months or years as to whether an employer followed the PERM regs to a “T” does little, if anything, to protect the wages and working conditions of U.S. workers. To the contrary, it may impede the retention of key talent that could ultimately pave the way for additional job growth and opportunity. Moreover, PERM is costly and employer-unfriendly.

DOL could fix the PERM process in many ways to make it more sensible for employers and fair for U.S. workers. After all, the entire architecture of PERM—the concept of employers doing individualized, highly structured labor market tests for each job opportunity—is a DOL creation — the details we are dealing with are not mandated by statute. The statute from which PERM is derived is literally one short section in the INA that states that a foreign national seeking to enter the U.S. permanently to work in a skilled or unskilled occupation is inadmissible unless the Secretary of Labor determines that there are insufficient U.S. workers for the opportunity and the employment of the foreign national won’t adversely affect the wages and working conditions of U.S. workers. Think about how many different systems might be set up to accomplish this goa1! For example, DOL could look at the real-world recruitment that was done prior to the initial hiring of the foreign national (remember RIR?), and, if the recruitment is satisfactory, exempt the employer from any further recruitment.

However, DOL won’t fix the system, because it has too much money and effort invested in the current process. We desperately need a system that works in both good economic times and tough ones—a system that is both respectful of employers needs and protective of U.S. workers. That means that it is up to Congress to take a look at labor certification and see if there is a better way to accomplish these goals.

By Eleanor Pelta, AILA First Vice President

H-1B workers certainly seem to be under fire these days on many fronts. A new memo issued by USCIS on the employer-employee relationship imposes new extra-regulatory regulations on the types of activities in which H-1B workers can engage as well as the types of enterprises that can petition for H-1B workers. The memo targets the consulting industry directly, deftly slips in a new concept that seems to prohibit H-1B petitions for employer-owners of businesses, and will surely constitute an open invitation to the Service Centers to hit H-1B petitioners with a new slew of kitchen-sink RFE’s. On another front, USCIS continues to make unannounced H-1B site visits, often repeatedly to the same employer. Apart from the “in-terrorem” impact of such visits, I personally cannot see the utility of three different visits to the same employer, particularly after the first one or two visits show that the employer is fully compliant.

But USCIS isn’t the only agency that is rigorously targeting H-1B’s. An AILA member recently reported that CBP pulled newly-arrived Indian nationals holding H-1B visas out of an immigration inspection line and reportedly placed them in Expedited Removal. The legal basis of those actions is still unclear.

Finally, recent H-1B “skirmishes” include various U.S. consular posts in India issuing “pink letters” that are, simply put, consular “RFE’s” appearing to question the bona fides of the H-1B and requesting information on a host of truly repetitive and/or irrelevant topics. Much of the information that is routinely requested on a pink letter is already in the copy of the H-1B visa petition. Some of the letters request payroll information for all employees of the sponsoring company, a ridiculous request in most instances, particularly for major multi-national companies. One of the most frustrating actions we are seeing from consular officers in this context is the checking off or highlighting of every single category of additional information on the form letter, whether directly applicable or not, in effect a “paper wall” that must be overcome before an applicant can have the H-1B visa issued. Very discouraging to both employer and employee.

How have we come to a point in time where the H-1B category in and of itself is so disdained and mistrusted? Of course I’m aware that instances of fraud have cast this category in a bad light. But I think that vehemence of the administrative attack on the H-1B category is so disproportionate to the actual statistics about fraud. And interestingly, the disproportionate heavy-handed administrative reaction comes not from the agency specifically tasked with H-1B enforcement—the Department of Labor—but from CIS, CBP and State. Sometimes I just have to shake my head and ask myself what makes people so darn angry about a visa category that, at bottom, is designed to bring in relatively tiny number of really smart people to work in U.S. businesses of any size. It has to be a reaction against something else.

Yes, a great number of IT consultants come to the US on H-1B’s. It is important to remember that so many of these individuals are extremely well-educated, capable people, working in an industry in which there are a large number of high profile players. And arguably, the high profile consulting companies have the most at stake if they do not focus on compliance, as they are the easiest enforcement target and they need their business model to work in the U.S. in order to survive. Some people may not like the business model, although arguably IT consulting companies provide needed services that allow US businesses, such as banks and insurance companies to focus on their own core strengths. Like it or not, though, this business model is perfectly legal under current law, and the agencies that enforce our immigration laws have no business trying to eviscerate it by policy or a pattern of discretionary actions.

It is true that some IT consulting companies’ practices have been the focus of fraud investigations. But DOL has stringent rules in place to deal with the bad guys. Benching H-1B workers without pay, paying below the prevailing wage, sending H-1B workers on long-term assignments to a site not covered by an LCA—these are the practices we most often hear about, and every single one of these is a violation of an existing regulation that could be enforced by the Department of Labor. When an employer violates wage and hour rules, DOL investigates the practices and enforces the regulations against that employer. But no one shuts down an entire industry as a result.

And the IT consulting industry is not the only user of the H-1B visa. Let’s not forget how many other critical fields use H-1B workers. In my own career alone, I have seen H-1B petitions for nanoscientists, ornithologists, CEO’s of significant not for profit organizations, teachers, applied mathematicians, risk analysts, professionals involved in pharmaceutical research and development, automotive designers, international legal experts, film editors, microimaging engineers. H-1B’s are valuable to small and large businesses alike, arguably even more to that emerging business that needs one key expert to develop a new product or service and get the business off the ground.

The assault on H-1B’s is not only offensive, it’s dangerous. Here’s why:

• H-1B’s create jobs—statistics show that 5 jobs are created in the U.S. for every H-1B worker hired. An administrative clamp-down in the program will hinder this job creation. And think about the valuable sharing of skills and expertise between H-1B workers and U.S. workers—this is lost when companies are discouraged from using the program.
• The anti-H-1B assault dissuades large businesses from conducting research and development in the US, and encourages the relocation of those facilities in jurisdictions that are friendlier to foreign professionals.
• The anti-H-1B assault chills the formation of small businesses in the US, particularly in emerging technologies. This will most certainly be one of the long-term results of USCIS’ most recent memo.
• The attack on H-1B’s offends our friends and allies in the world. An example: Earlier this year India –one of the U.S.’s closest allies –announced new visa restrictions on foreign nationals working there. Surely the treatment of Indian national H-1B workers at the hands of our agencies involved in the immigration process would not have escaped the attention of the Indian government as they issued their own restrictions.
• The increasing challenges in the H-1B program may have the effect of encouraging foreign students who were educated in the U.S. to seek permanent positions elsewhere.

Whatever the cause of the visceral reaction against H-1B workers might be—whether it stems from a fear that fraud will become more widespread or whether it is simply a broader reaction against foreign workers that often raises its head during any down economy –I sincerely hope that the agencies are able to gain some perspective on the program that allows them to treat legitimate H-1B employers and employees with the respect they deserve and to effectively enforce against those who are non-compliant, rather than casting a wide net and treating all H-1B users as abusers.

Perhaps it has been too long since USCIS has truly been held accountable for its actions that it has become desensitized to the legal constraints under which it is permitted to operate. The USCIS is not given carte blanche to make whatever changes or interpretations it wants to long-standing immigration law, without first complying with the Administrative Procedure Act (“APA”). Yet, twice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA.