H.R. 6429 Another Zero Sum Game That Does Not Have To Be, Disturbing News For China EB-5 Picture, More Reason To Appeal USCIS Decisions

Alan Lee, Esq.

How to Improve H.R. 6429.

Republicans are pushing the STEM Jobs Act (H.R. 6429) (presently opposed by the White House as being too narrowly drawn), which would eliminate the 55,000 visa numbers of the annual visa lottery program and reallocate the numbers for foreign graduates of U.S. universities with advanced STEM degrees. The visa numbers would first be made available for those with doctorates with the remaining ones going to those with masters. The legislation passed in the House by 245-139 vote on November 30, 2012.

  • Ph.D's - Applicants must have received a doctorate from a U.S. university in Science, Technology, Engineering, or Math (STEM), took all Ph.D coursework while physically present in the U.S., and be petitioned for by an employer who went through the labor certification process or had the requirement waived in the national interest. A labor certification already acquired by the same employer for the applicant may be used in satisfaction thereof.
  • Master's - Applicants must have a two year master's degree or master's from a 5 year combined bachelor's/master's program from a U.S. university in a STEM subject, took all their master's coursework while physically present in the U.S., hold a bachelor's degree in a STEM field or one included in the Department of Education's classification of instructional programs taxonomy within the summary group of biological and biomedical sciences, and be petitioned for by an employer who went through the labor certification process or had the requirement waived in the national interest. A labor certification already acquired by the same employer for the applicant may be used in satisfaction thereof.

We oppose the legislation with our first objection being also that the legislation is drawn too narrowly. It should be more inclusive of others with advanced degrees received in this country such as was offered in the now stalled H.R. 3012, the Fairness for High Skilled Immigrants Act of 2011, which would also have eliminated the visa lottery program in exchange. Our second objection is the same as it was with H.R. 3012 - that there are no additional visa numbers. The Republicans unfortunately appear to view both pieces of legislation as zero sum games in which winners profit at the expense of others. Instead of swapping one category of immigrants for another, there should be recognition that both groups enrich the fabric of this country, and additional visa numbers should be allotted by Congress, instead of numbers merely being transferred. If Congress is unwilling to do that, it should give some consideration to recapturing some of the approximate 325,000 unused employment preference numbers which have not yet been touched by special legislation. Our third objection is making applicants go through the labor certification process. That requirement runs counter to both candidates' position when running for President that these individuals should be given green cards upon graduation. Breaking down the bill as it stands, it eliminates most of the waiting period to obtain permanent residence, but still requires the applicant to have an employer willing to go through the burdensome and expensive permanent labor certification process, and disenfranchises another set of immigrants in return.

China EB-5 and Retrogression Concerns.

There was disturbing news in the December visa bulletin that the EB-5 investment immigration category for China born individuals may backlog in this fiscal year (FY-2013) based on current demand - that "it appears likely" that a cutoff date will be needed during the second half of fiscal year 2013 (4/1/13-9/30/13). The Visa Office stated that it would delay the action as long as possible. The worldwide EB-5 limit per year is 9,940 and USCIS Director Alejandro Mayorkas stated in the EB-5 public engagement of December 3, 2012, that the program had grown exponentially - in 2008 USCIS had approved 640 I-526 petitions; and that 3700 petitions were approved and 7,500 EB-5 visas issued in the last fiscal year. Natives of China are large users of the numbers. An interesting subject that was explored in the meeting was the job creation requirement of creating 10 jobs for each investor within two years of I-526 petition approval (USCIS in practice adds another half year for the individual to complete immigration and enter the U.S.), and the thought that if the requirement was strictly adhered to, and the quota backlogged as expected for China born, all the jobs might have to be created before the investors actually came to the United States. Mr. Mayorkas said that he would take another look at whether actual job creation was a requirement to remove the conditional basis of residence status in the I-829 filing in light of this and other arguments by American Immigration Lawyers Association (AILA) attorneys at the meeting. USCIS also recently released EB-5 statistics showing that for fiscal year 2012 (10/1/11-9/30/12), the rate of I-526 approvals was 79% and I-829 petitions 92%. The first figure was slightly lower than the average seven years approval rate of 81% and the second higher than the average of 84%.

More Reason to Launch USCIS Adverse Decision Appeals Now.

The latest Administrative Appeals Office (AAO) report shows that USCIS's appeals unit has largely reduced the amount of time that it is taking to adjudicate appeals of adverse decisions. According to the processing time chart, the AAO now processes H-1B specialized occupation appeals in 9 months, L-1 intracompany transferees in 10 months, EB-1C multinationals in 10 months, EB-3 professional and skilled workers in 24 months, and I-601 waivers of inadmissibility in 13 months. Everything else is current. AAO is to be commended for its drastic reduction of times from even our February 2012 article in which we cited that office's problematic handling of H-1B appeals taking 22 months; L-1 denials 23 months; EB-2 advanced degree professionals 24 months; EB-3 skilled and professional workers 35 months; and I-601 waivers of inadmissibility 26 months. See our articles H-1B'S To Move Faster; Perm Approval httStats Down; AAO Adjudication Times Too Long etc; Grading The Various Governmental Bodies For Their Work On Immigration In 2008 This is extremely encouraging news for affected parties receiving negative decisions from the agency as many in the past have chosen to forgo the appeal route because of the long periods of time required to await an appellate decision. As the waiting times come down to more reasonable ranges (USCIS's stated goal being six months on all categories), many companies and organizations that disagree with USCIS's decisions will believe it within their capacities to wait for an appeal to go through, and many individual parties may come to believe that they are not necessarily bound by the first decision of the agency.

This article © 2012 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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