The press has been reporting that the woman who carried out the San Bernardino massacre with her husband came to the U.S. last year on a K visa, raising questions about whether the K visa process can adequately vet people who may sympathize with terrorist groups. However, this is one of the harder visas to get. To get the K visa the foreign national must go through a Consular process that includes an interview with the couple and background checks that are more stringent than probably for any other visa. While we can improve any process, it would be an error to abolish the K visa process as a whole for one error.
Legislation Proposed to Reform H-1B and L-1 Visa Programs
In November, Senator Dick Durbin (D-Ill.), Chairman of Senate Judiciary Committee, and Senator Chuck Grassley (R-Iowa), Assistant Democratic Leader, introduced a new bipartisan legislation seeking to reform and reduce fraud and abuse in certain programs for foreign workers working temporarily in the United States. This bill, or the H-1B and L-1 Visa Reform Act, stems from ongoing criticism of the H-1B Visa Program, among other programs, because of the accusation that large outsourcing companies have been abusing the system. Senators Durbin and Grassley have said that the abuse is “real” and the need for reform is urgent. Senator Grassley has also said that the media are validating the fact that Americans are training their replacements, something that Grassley and Durbin have been arguing against for years.
Senator Durbin and Senator Grassley have been trying to reform the H-1B program since 2007. In the spring of 2007, they introduced “The H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007” to overhaul the H-1B and L-1 visa programs by giving priority to American workers and regulate employers who may be depriving qualified Americans of high-skill jobs. Senator Durbin said that the United States’ immigration policy should “seek to complement our U.S. workforce, not replace it.” Today, Durbin and Grassley continue to argue that large foreign outsourcing companies may use loopholes in the laws to displace qualified Americans and facilitate the outsourcing of American jobs. These and other concerns are echoed today through the H-1B and L-1 Visa Reform Act.
For this current legislation, they have more support than they did several years ago because they have three senate co-sponsors: Sen. Bill Nelson (D-FL), Sen. Richard Blumenthal (D-CT), and Sen. Sherrod Brown (D-OH). The proposed legislation addresses reforms to increase enforcement, modify wage requirements, and ensure protection for American workers as well as visa holders.
A few highlights of the bill include:
- Requiring all employers who seek to hire H-1B worker to first put a strong effort to recruit American workers before turning to other countries
- Prioritizing the annual allocation of H-1B visas: Currently, many large IT services companies receive more than half of the annual visa allotment which lowers the chances of employers trying to hire a smaller number of workers. The bill will prohibit large companies from hiring H-1B workers if more than 50% of their employees are on H-1B or L-1 visas.
- Prohibiting the replacement of American workers by H-1B or L-1 visa holders.
- Giving graduates of United States universities preference in the visa distribution.
- Giving the Department of Labor enhanced authority to review, investigate and audit employer compliance as well as to penalize fraudulent or abusive conduct.
This bill is just one of many proposed legislation related to immigration that are circulating around the Senate and the House this year. Senator Orrin Hatch (R-Utah) is sponsoring the Immigration Innovation (“I-Squared”) bill which would raise the annual cap on H-1B visas from 65,000 to between 115,000 and 195,000. Senator Blumenthal is a co-sponsor for this legislation as well. Senator Ted Cruz (R-Texas) has also said he is working on an H-1B reform bill.
Read the full text of the H-1B and L-1 Visa Reform Act of 2015 here.
For further information on the proposed legislation, refer to the articles below:
http://www.durbin.senate.gov/newsroom/press-releases/grassley-durbin-push-for-h-1b-l-1-visa-reforms
http://www.grassley.senate.gov/news/news-releases/grassley-durbin-push-h-1b-and-l-1-visa-reforms
Rachel is an intern with the firm and is not a practicing attorney.
Tagged with: H-1B, Immigration Policy, L-1, Proposed Legislation, Visa Program Reform
Posted in In The News
Posted in In The News
New Speaker Paul Ryan Postponing Talks About Immigration Reform Until 2017
Newly elected speaker, Paul Ryan (R-Wis), is already busy settling into his role and deciding what major policies he wants to tackle first. Excluded from his policy list is immigration reform. Ryan has decided to hold off on advancing any immigration legislation until after the 2016 elections because he deems President Obama as “untrustworthy” when it comes to immigration policy. Ryan has said in an interview, “I think it would be a ridiculous notion to try and work on an issue like this with a president we simply cannot trust on this issue.” Ryan cites that President Obama’s “untrustworthiness” stems from the fact that the President has issued executive orders on immigration reform thereby “circumventing the legislative process” as Ryan says. Ryan’s decision to postpone focus on immigration reform comes from the desire to balance his promise to tackle difficult issues with the political reality of lawmakers who are suspicious of his positions, specifically on immigration policy. Ryan’s stance on the matter is one that will not change until at least January 2017 once a new president is sworn into office. However if another Democrat is elected to office it is likely that immigration negotiations would continue to be postponed.
Rachel is an intern with the firm and is not a practicing attorney.
Tagged with: 2016 Elections, Immigration Policy, Immigration Reform, Legislation, Speaker Paul Ryan
Posted in In The News
Posted in In The News
BALCA Affirms CO’s Denial Where Beneficiary Has an Ownership Interest in Closely Held Company
The Board of Alien Labor Certification Appeals (BALCA) upheld a Certifying Officer’s denial of an Employer’s Application for Permanent Certification due to the fact that the beneficiary and her husband each had a 50% ownership interest in the sponsoring entity. The CO stated that when an employer is a closely held corporation in which the alien has an ownership interest or a familial relationship with the stockholders, officers, incorporators, or partners, and is one of a small number of employees, a presumption exists that the job opportunity is not open and available to U.S. workers, which is in violation of 20 CFR §656.10(c)(8).
Rachel is an intern with the firm and is not a practicing attorney.
Tagged with: BALCA, Company ownership, Employer's Application for Permanent Certification
Posted in In The News
Posted in In The News
USCIS’ Draft of Policy Manual Guidance on Extreme Hardship Available for Comment
USCIS has released a draft of the USCIS policy manual guidance on extreme hardship. This manual includes guidance on several different topics including:
- General considerations, interpretations, and adjudication steps
- Establishing a qualifying relative
- Extreme hardship factors
- Extreme hardship determinations
- Discretion
This draft is available for comment and feedback. All comments are due by 11/23/15.
Draft Policy Manual – Volume 9 Part B Extreme Hardship (DRAFT)
Rachel is an intern with the firm and is not a practicing attorney.
Tagged with: Extreme Hardship, Policy Manual Draft, USCIS
Posted in In The News, USCIS New Policies/Procedures
Posted in In The News, USCIS New Policies/Procedures
Public Law 111-230 H-1B, L-1 Additional Fees Expire
H-1B and L-1 petitions filed on or after Oct. 1, 2015, should not include the additional fee that was previously required by Section 402 of Public Law 111-230, as amended by Public Law 111-347, for certain H-1B and L-1 petitions. The additional fee required by Public Law 111-230, as amended, expired on Sept. 30, 2015.
All other H-1B and L-1 fees, including the Base fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee when applicable, are still required. Petitions with incorrect fees may be rejected. Petitioners are reminded that USCIS prefers separate checks for each filing fee.
Public Law 111-230, enacted on Aug. 13, 2010, required an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010. Public Law 111-347, enacted on Jan. 2, 2011, extended the fees through Sept. 30, 2015. For more information, visit the H-1B Visa or L-1 Visa pages or call the National Customer Service Center at (800) 375-5283.
District Court Denies TRO Against State Department in October Visa Bulletin Suit
On September 28, 2015, several beneficiaries of approved employment-based visa petitions for highly skilled workers filed a class action complaint seeking declaratory and injunctive relief. Plaintiffs asked the court to strike down the revised 9/25/15 version of the October Visa Bulletin and compel USCIS to accept adjustment applications in line with the original 9/9/15 Bulletin. Plaintiffs then filed an amended complaint along with an emergency motion for a temporary restraining order (TRO) against the State Department. The U.S. District Court for the Western District of Washington has denied the motion for TRO stating “While the Court appreciates the confusion caused by the two Visa Bulletins published in September and the potentially wasted expenses Plaintiffs incurred as a result, because Plaintiffs fail to meet the critical elements for a temporary restraining order at this time, the Court cannot issue injunctive relief.”
Rachel is an intern with the firm and is not a practicing attorney.
All Embassies and Consulates Will Be Closed 10/9/15 Due to Systems Upgrade
The Department of State has announced that all embassies and consulates will be closed to the public on Friday, October 9, 2015 due to a consular systems upgrade. People who have an appointment scheduled for that day will be contacted soon to reschedule. Individual posts are expected to provide instructions on methods to request an emergency appointment. Additionally, Application Service Centers (ASCs) connected to certain posts may also experience closures. For more information on the closures, please review individual post websites.
Rachel is an intern with the firm and is not a practicing attorney.
Tagged with: Application Service Centers, Appointments, Consulate Closure, Embassy Closure, Systems Upgrade
Posted in Consular Issues, In The News
Posted in Consular Issues, In The News
USCIS Announces Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status
USCIS, in coordination with Department of State (DOS), is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.
This revised process will enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates.
The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015.
What is Changing
Two charts per visa preference category will be posted in the DOS Visa Bulletin:
- Application Final Action Dates (dates when visas may finally be issued); and
- Dates for Filing Applications (earliest dates when applicants may be able to apply).
Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status.
To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:
- Documentarily qualified visa applicants reported by DOS;
- Pending adjustment of status applications reported by USCIS; and
- Historical drop off rate (for example, denials, withdrawals, abandonments).
About the Visa Bulletin
DOS publishes current immigrant visa availability information in a monthly Visa Bulletin. The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date.
- The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by Department of Labor.
- Availability of an immigrant visa means eligible applicants are able to take one of the final steps in the process of becoming U.S. permanent residents.
Learn more about adjustment of status and the Visa Bulletin on USCIS’s website.
Rachel is an Intern with the firm and is not a practicing attorney.
Tagged with: Adjustment of Status, Revised Procedures, USCIS, Visa Availability
Posted in In The News, USCIS New Policies/Procedures
Posted in In The News, USCIS New Policies/Procedures
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