CIS
Without changing existing law, Trump and the CIS are adding bureaucratic obstacles to the employment-based immigration process designed to discourage U.S. businesses from hiring foreign workers. It’s ironic that Trump and many Republicans who pretend to support U.S. business and economic efficiency would impose more and more red-tape bureaucratic hurdles and delays to the legal immigration process. Click here to read the full article.
Timothy R. Bakken
Founder
A series of articles nicely describes the current state of the employment-based immigration environment in the U.S., the outlook for 2018, and responses from U.S. high tech businesses and employees.
First, requests for additional evidence and denials of H-1B Petition are at an all-time high. In fact, the CIS denied more than twice as many H-1B petitions in November 2017 compared to the same time last year. Second, Bloomberg summarizes expected trends in employment-based immigration in 2018, including increased enforcement and increased scrutiny of all immigrant and nonimmigrant petitions filed by U.S. employers. Finally, U.S. tech companies are increasingly looking to Canada as a base of operations due to Canada’s more welcoming and more easily navigable employment-based immigration system.
Timothy R. Bakken
Founder
This article describes what I am seeing in my direct experience in the world of U.S. business immigration. The CIS is issuing excessive requests for additional evidence even where an applicant is seeking an extension of an existing status with no changes in the underlying job duties, job location, or conditions of employment. Granted, the law properly requires petitioning companies and applicants to establish eligibility for the requested status. But, the current administration has issued guidelines that encourage CIS officers to demand more and more evidence of obvious facts (and give more leeway to deny petitions). One particularly egregious and comical example from my own practice: The CIS asked my client, a huge, well-known airline, to prove it was an existing business as part of its H-1B petition for a financial analyst. The petition was approved but only after unnecessary expense and time spent proving facts that are common knowledge to any living, breathing person. These new interpretations of existing law and regulations are inefficient and wasteful and contradict any professed goal of streamlining government bureaucracy. And, to be clear, I wholeheartedly support a crackdown on unscrupulous companies that abuse the H-1B program or any visa program. The current administration’s new rules and unreasonable interpretations of existing laws and regulations do not effectively address visa fraud because they treat law-abiding companies with long histories of closely following immigration law the same as companies that abuse the system.
Timothy R. Bakken
Founder
On October 23, 2017, the CIS made official what immigration attorneys have been seeing in practice for a long time: Dramatically higher and more intense scrutiny of extension petitions for nonimmigrant workers. In the past, CIS understood that a prior approval of a petition should be given consideration, i.e., if CIS previously granted a petition it is logical to assume that CIS knew what it was doing and knew that it was inefficient and unnecessary to re-adjudicate the entire matter each time an extension was requested. CIS has always had the authority, as it should, to question a prior approval where a CIS officer suspects fraud or a material change in the underlying eligibility for a particular nonimmigrant status, so the intention of the new guidance is unclear except that it will force petitioners and individuals to spend more money and time trying to prove to CIS what CIS has already accepted in a prior filing. So much for encouraging a dynamic and efficient 21st century economy! The new guidance applies to all nonimmigrant work categories that require filing of an I-129 petition – H-1Bs, H-2Bs, L-1s, Os, Ps, and others. The policy takeaway: This administration really does not see immigration as a benefit to our country’s culture and economy. The practical takeaway: Overdocument! U.S. businesses and individuals trying their hardest to follow the immigration laws and procedures will have to try even harder and even when they do everything right will face increased uncertainty in the future. Read more here.
Timothy R. Bakken
Founder
A reminder that employers must use the July 17, 2017 version of Form I-9. Find the form here.
Timothy R. Bakken
Founder
A recent story caught my eye because it perfectly portrays the uninformed basis of so much of the current anti-immigrant rhetoric and policy infecting our country. U.S. Senator Grassley, from Nebraska, wrote a letter to the head of the Department of Homeland Security in which he implies that Citizenship and Immigration Services (CIS) is improperly granting O-1 visas to people trying to circumvent H-1B visa restrictions. As an immigration attorney and an officer of the court, I take seriously my oath to uphold the law and I am 100% against the misuse of our immigration laws by those who commit fraud to attempt to qualify for visas to which they are not entitled. However, it is simply inaccurate to denigrate the accomplishments and talents of legitimate O-1 visa holders whom our government has determined satisfy the rigorous O-1 requirements for proving extraordinary ability in a particular field.
Our firm frequently prepares and files successful O-1 visa petitions on behalf of clients who have demonstrated extraordinary abilities in music, art, athletics, and engineering, among other fields. Some of these clients may also qualify for other visa statuses but have legitimate reasons for selecting the O-1 category. Likewise, some individuals may qualify for O-1 status but decide to apply for a different nonimmigrant visa category for which they also qualify. I trust that the CIS and Senator Grassley understand that an individual who meets the statutory and regulatory requirements for a particular visa status should be granted that status after a careful review of the applicant’s qualifications.
The problem with Senator Grassley’s letter is a common problem in today’s hysterical anti-immigrant climate, i.e., unfounded allegations and rumors are used to feed the false narrative that immigrants are hurting our country. Try telling that to the multitudes of highly educated and extraordinarily talented musicians, artists, engineers, authors, athletes and many others (as well as their American audiences and employers!) who have chosen to enrich our country with their unique talents. Anti-immigrant hysteria and paranoia only weakens our country’s cultural excellence and economic prominence.
Timothy R. Bakken
Founder
