Fragomen Immigration Update: February 9 - 16, 2012
February 16, 2012
Getting at the Truth of “Get to Yes”
This week, the House Immigration Subcommittee held a hastily called hearing on “safeguarding the integrity” of the USCIS immigration benefits adjudication process. The hearings were prompted by a provocative new DHS Inspector General report alleging that USCIS officers feel pressured to approve cases in a “get to yes” culture that compromises national security and the rule of immigration law. The report also suggested that immigration attorneys unduly influence the adjudication process and should be barred from informally advocating on behalf of their clients. But despite the best efforts of accusers, the hearings shed light on the myths and untruths underlying these allegations.
Critics – including Rep. Zoe Lofgren (D-CA), ranking member of the Subcommittee – forcefully countered the IG, calling the report “amateurish” and pointing out that its conclusions are based on flawed and distorted data. The release last week of official statistics on nonimmigrant petition denials cast further doubt on the IG’s claims. The numbers revealed a truth known all too well to U.S. employers: an increasing “culture of no” within USCIS, with H-1B and L-1 petition denial rates that have skyrocketed in the last four years.
But it was witnesses testifying in support of the IG report who revealed some of the most important truths. The author of the report, acting DHS Inspector General Charles K. Edwards, himself admitted that despite his report’s intimations, “no conspicuous fraud was found” in immigration benefits adjudications.
And Mark Whetstone, president of the USCIS officers’ union, forcefully argued that there is “no culture of getting to yes” in the agency. Furthermore, he stated his conviction that pressure from outside does not “get denials turned into approvals,” though advocacy by an immigration attorney might lead to a case being reviewed anew.
At the same time, Mr. Whetstone maintained that his fellow officers should not be measured purely on the speed of their case production but on the quality of their adjudications, with appropriate productivity metrics. Mr. Whetstone is correct, and he should have an ally in USCIS Director Alejandro Mayorkas, who claims he wants his adjudicators to “get to right,” not merely to “yes” or “no.”
Like any other administrative body tested by an enormous volume of filings and a complex body of law, Director Mayorkas’ agency will always struggle with the tension between adjudication quality and promptness. Its customers and their immigration attorneys will always urge it to do better on the law and the process, whether in an individual matter or across the board. But to fall prey to the allegation that USCIS officers are easily influenced and that petitioners and their advocates exert improper pressure does a disservice to the agency, the business immigration community and the dedicated professionals on either side of an immigration matter.
Important Updates in Immigration This Week
February 14, 2012
United States
New Rule Allows L-1 Visas to Be Issued for Up to Five Years
Under a new State Department rule, foreign nationals can be issued L-1 visas valid for up to five years, depending on the maximum period allowed for their country of citizenship. The rule will not increase an L-1 nonimmigrant’s authorized period of stay in the United States, but it means that some foreign nationals will not need to renew an L visa even if they later extend their stay.
To view entire article, click here.
February 14, 2012
United Kingdom
Program for Graduate Job Seekers to be Replaced by New Graduate Entrepreneur Category
The Tier 1 (Post-study work) program for graduate job seekers will no longer be open for new applicants as of April 5, though a new category will be created specifically for graduate entrepreneurs.
To view entire article, click here.
February 14, 2012
United Kingdom
UKBA Report Names Employers Penalized for Violations of Employment Authorization Rules
The UKBA has published a list of employers who have failed to pay fines for noncompliance with work authorization rules. A second report details the overall number of noncompliant employers and the total monetary value of civil penalties issued, but does not name individual employers. The reports will be issued quarterly.
To view entire article, click here.
February 13, 2012
Romania
Romania Introduces EU Blue Card
The Blue Card will allow highly skilled third-country nationals to live and work temporarily in Romania, and ultimately acquire long-term residence rights in the European Union.
To view entire article, click here.
February 10, 2012
Saudi Arabia
Businesses Must Employ a Minimum Number of Saudi Workers to Obtain or Extend Work Visas
Under Saudi Arabia’s new Nitagat system, businesses must maintain a minimum percentage of Saudi nationals in their workforce, based on their size and industry, to sponsor foreign nationals for new work visas or extend work visas for existing foreign employees.
To view entire article, click here.
February 10, 2012
Philippines
Alien Certificate of Registration Card Holders Must Carry a Valid Card to Travel Abroad
Foreign nationals who are required to hold an Alien Certificate of Registration Card must present a valid, dated card upon exit and reentry, with some exceptions. Foreign nationals with pending card applications will be prevented from exiting the country. Those seeking to reenter the Philippines with an expired or undated card will be admitted as tourists and lose their work or dependent status.
To view entire article, click here.
Other Immigration News This Week
United States: E-Verify Self Check Feature Now Available Nationwide – Foreign nationals and U.S. citizens in all 50 states and U.S. territories may now use U.S. Citizenship and Immigration Services’ “Self Check” feature in the E-Verify system to check their own employment eligibility records for accuracy online, for free. The feature allows individuals to enter the same personal information that an employer would use to conduct an E-Verify check. Users are only permitted to check their own personal data. Employers are barred from using the feature to verify the data of another.
Self Check was launched to allow individuals to identify employment verification issues in advance of the hiring process, to save time and prevent administrative difficulties for both the employer and employee. The feature was launched in March 2011 as a partnership program between the Department and Homeland Security and the Social Security Administration. During its initial phase, Self Check was available only in five states and Washington, D.C., and has been progressively expanded since its introduction.
United States: Nonimmigrant Visa Interview Waiver Program Implemented at U.S. Consulates in China – A pilot program now allows nonimmigrant visa interviews to be waived for some renewal applicants who previously held a B, C-1, D, F, M, J and O visa, so long as the renewal is made within 48 months (but more than 12 months) of the expiration of the previous visa, and is made for the same visa classification as the initial visa. H and L visa renewals do not appear to be eligible for the interview exemption. The pilot began on Jan. 19, 2012 and will run through January 19, 2014.
In an effort to speed visa processing at China consulates, the State Department will soon assign 50 new officers to consulates in China, and will reopen the consular facility located in the first Diplomatic Neighborhood of Beijing. The reopening is intended to increase consular interviewing capacity by 50 percent, thereby speeding the visa process. These changes were announced following the White House's efforts to improve and speed up the visa process for certain qualified travelers.
United States: DOL Updates FY 2012 PERM Statistics and Processing Times - The Department of Labor reports that to date in FY 2012, it has received a total of 17,700 PERM applications, and has processed a total of 16,555 cases. As of February 15, 2012, DOL was processing to completion non-audited PERM cases that were filed in October 2011. DOL is still processing audited cases that were filed in June 2011 and is processing appeals that were filed in August 2010. Government error appeal cases are current.
United States: FY 2012 H-2B Cap Numbers Updated - H-2B numbers for temporary non-agricultural workers continue to be available for employment in the first half of FY 2012, which runs from, October 1, 2011 through March 31, 2012. As of February 10, 2012, USCIS had received filings on behalf of 34,481 beneficiaries. For the second half of FY 2012, the agency had received petitions for 6,833 H-2B beneficiaries. Though the cap for each half-year is 33,000, USCIS accepts filings in excess of the cap (up to the beneficiary target) because some cases will be denied or withdrawn and because employers may ultimately employ fewer H-2B beneficiaries than reflected in their petitions.
Panama: Federal Police Clearances Required for Work Visa Applications – Effective immediately, foreign nationals applying for a work visa, with the exception of the Multinational Companies visa, must now submit a police clearance document issued by the federal police as part of their application. Previously, immigration authorities accepted clearances issued by the local or state police. Nationals of countries that do not issue federal police clearances must submit a police clearance document issued by the highest law enforcement division in the country. All police clearances must bear an apostille or be legalized by a Panamanian consular post in the country of the document’s issuance. The federal police clearance requirement will be applied to Multinational Companies visa applications in approximately four to six weeks.
Poland: Some Undocumented Illegal Immigrants May Now Legalize Status - Under a new law that entered into effect on January 1, 2012, certain undocumented foreign nationals illegally residing in Poland may now legalize their status and obtain a temporary residence permit and employment authorization. In order to apply for the temporary permit, a foreign national must submit information to the immigration authorities proving that he or she (1) has continuously resided in Poland since December 1, 2007 or earlier; (2) has resided in Poland continuously since January 1, 2010 and received both a deportation order and a denial of an application for refugee status prior to January 1, 2010; or (3) has resided in Poland with a pending application for refugee status which was first submitted on or after January 1, 2010. Qualifying foreign nationals will be issued a temporary residence permit with a two-year validity period, during which the foreign national may be employed without a work permit, pursuant to a signed employment contract.
Global Immigration News Links
- Over the course of the GOP nomination process, Republican candidates have shown a trend of tailoring their immigration message to the particular state in which they are campaigning. With the Arizona primary fast approaching, the candidates may adopt a harsher anti-immigration stance given the state’s recent history of enacting aggressive anti-immigration law. Arizona Primary Could Push Republicans Back to the Right on Immigration.
- In an attempt at curbing abuses of Canada’s asylum system, Canada’s Citizenship, Immigration and Multiculturalism Minister Jason Kenney has introduced legislation aimed at reforming Canada’s process for foreign nationals to apply for asylum. The proposed reforms also aim to combat human smuggling, and would require submitting biometric information as part of the application process to obtain a temporary resident visa. Harper Government Introduces the Protecting Canada’s Immigration System Act.
- Hundreds of protesters rallied against Alabama’s stringent anti-immigration law on Tuesday, calling for a complete repeal of the law in the face of lawmakers’ proposals to make only minor tweaks to the controversial legislation. Hundreds Rally Against Alabama Immigration Law.
