The Current (Sad) State of U.S. Immigration Law & Policy

Steven H. Garfinkel, Esq., Managing Partner
N.C. Board Certified Immigration Law Specialist
[email protected]

The Current (Sad) State of U.S. Immigration Law & Policy

Outdated Law

U.S. immigration laws are severely outdated. The Immigration Act of 1990, now over twenty-five years old, still governs federal immigration law. Although some states have passed their own laws dealing with immigration issues, it is well settled that immigration law is, by and large, federal law. Perhaps it is due to the sheer complexity of immigration law (many say only tax law is more complex), that the current law has not been repealed and/or significantly reformed.

Demand Exceeds Supply for Immigrant ("Green Cards") and Nonimmigrant ("Temporary") Visas

For many years, demand for immigrant (permanent) and non-immigrant (temporary) visas has been significantly higher than the Act supplies. Currently, a "flexible" total of 675,000 immigrant visas is available annually. These visas are further separated into three categories: Family-Based (FB), Employment-Based (EB), and the Diversity Lottery (DV).

The total number of FB visas equals 480,000 minus the total number of immediate relatives (spouses, parents and children (under twenty-one years old) of U.S. citizens) from the previous year plus the unused EB visas from the previous year (yes, complex and confusing!). The total number of EB visas equals 140,000 plus the unused FB visas from the previous year (less confusing but nonetheless inadequate based on demand). Finally, about 55,000 visas are reserved for the DV (Most people find it hard to believe that the government issues this many visas through a pure lottery!).

The picture is not much brighter for non-immigrant visas. The Act limits H-1B visas (visas for professionals like engineers, computer professionals, etc.) to 65,000 annually (with an additional 20,000 available but reserved for those with advanced degrees from U.S. colleges & universities. The 65,000 limit has been in place since 1990 (with a brief exception between 1999 and 2003 when the cap was temporarily increased to 115,000 and then to 195,000.

With the world becoming intellectually smaller and with global mobility growing in leaps & bounds, it is painstakingly obvious that the current quota of 85,000 visas is far too low. For the past thirteen years, demand has surpassed supply every year. All available H-1B visas have been issued well before the end of the government's fiscal year. Most recently (for Fiscal Years 2014, 2015, and 2016), the cap was reached within the first five days of the filing period. Immigration attorneys across the U.S. prepare H-1B petitions in February and March in order to have H-1B petition packages sent to the U.S. Citizenship & Immigration Services (USCIS) for receipt on April 1st. This year, the USCIS received 233,000 petitions within the first five days! We pray that a good number of our clients petitions get received, hoping we can "beat" the roughly 33% odds. We cheer the receipt notices received and then wait to get our rejected petitions back. ( :( !!)

So what do we do when we learn that our client's H-1B petition was not selected in the random lottery (Did I not mention that the lottery is completely random and that no preference is given to level of education, industry, company, etc.)? Well, we look to see if there might be other (less desirable) options. If there were better options, we would have discussed/suggested those previously!

Clampdown on L-1B Petitions

Let's turn our attention to the L-1 (intracompany transferee) visa. Multinational companies can often use this visa category to transfer key employees from their overseas locations to the properly related U.S. companies. Managers and Executives may qualify for L-1A visas while "Specialized Knowledge" employees may qualify for L-1B visas. Unlike the H-1B, the L-1 visa does not have a numerical cap and has historically received a high acceptance rate. However, in recent years, USCIS has started denying L-1B visa petitions at an increasing frequency, citing beneficiaries' lack of "specialized knowledge." In 2014, petitions for Indian citizens were denied 56% of the time, compared with 22% for Chinese, 15% for Germans and 4% for Canadians.

Further, many petitioners seeking L-1B petition approval are receiving Requests for Evidence (RFE) at an alarming rate, creating further delays in the process. USCIS has been questioning eligibility on two main grounds: qualifying experience and specialized knowledge. One year of experience with the foreign company within three years of transfer to the United States appears to be no longer sufficient, despite statutory and regulatory language indicating otherwise. Many RFEs also state the beneficiary does not possess the required level of "specialized knowledge" of the company's products or processes. A USCIS memo, effective August 31, 2015, was intended to give "clear" guidance on specialized knowledge. An L-1B beneficiary will need to possess special knowledge, defined as distinct or uncommon in comparison to that generally found in the particular industry; OR advanced knowledge, defined as greatly developed or further along in progress, complexity, and understanding than that generally found within the particular industry. The memo also sets out a non-exhaustive list of factors that USCIS may consider when making the determination including: knowledge that is particularly beneficial to the employer's competitiveness in the marketplace; the beneficiary's claimed specialized knowledge normally gained only through prior experience with that employer; and knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience. Although we question whether the memo went far enough in clarifying, only time will tell.

What Will Be the Future of U.S. Immigration Law/Policy?

The impasse between the Republican-controlled House of Representatives and Senate and the Democrats would appear to create a sense of futility with any large scale reform initiative. The slow death of any legislative process in the House and the Republican takeover of the Senate have killed any hopes for passage of a big reform bill in the foreseeable future. The bipartisan "Gang of 8" immigration reform bill, passed by the Senate in 2013, showed promise before subsequently expiring before a vote in the Republican-controlled House of Representatives. That bill was a compromise effort which would have dealt with the most contentious aspect of immigration reform (dealing with the ten million plus undocumented immigrants) by :

1. Allowing undocumented immigrants here since before January 1, 2010 to apply for a green card after 10 years (and for citizenship 3 years thereafter); and

2. Allowing young undocumented immigrants to obtain green cards in 5 years and citizenship immediately thereafter so long as they were in post-secondary education or in the military.

This bill's failure has led to the current state of affairs in immigration law. The Obama Administration boldly issued Executive Orders in November 2014, paving ground for an estimated 3.5 million parents of U.S. citizens and 180,000 of lawful permanent residents to receive protection. An expansion of DACA eligibility would have also seen an additional 85,000 individuals eligible to apply for protection from deportation. In February 2015, these provisions were blocked by a Texas court. The Justice Department has appealed this decision and will argue that Executive Orders be allowed to move forward later this summer.

Current Presidential Candidates

Reforming this broken system is now a hot topic in the 2016 presidential campaigns. Republican Senator Ted Cruz wants up to a 500% increase in the number of H-1B visas available each year, or roughly 325,000. Republican Senator Rand Paul wants to increase the numerical cap for jobs requiring high technical skills. Republican Senator Marco Rubio has fully supported I-Squared, a bill that would raise the statutory cap on H-1B visas to 115,000, with the possibility of the cap rising as high as 195,000 depending on economic conditions. On the Democratic side, Former Secretary of State Hillary Clinton has backed immigration reform historically and appears amenable to an increase in the H-1B cap.

The next few months will unveil candidate platforms in their entirety, all of which are tough to predict. One thing is for sure, however, immigration and immigration reform will be at the forefront of the political discourse.