USCIS announcement shifting H-1B adjudication trends: The first steptowards a pro-growth immigration policy?
By Tejas Shah
On August 2, 2011, USCIS announced a series of operational, policy, and outreach initiatives to spur job growth and fuel American economic competitiveness. The initiative included the publication of a fact sheet and announcement about the availability of the H-l B temporary visa category and the EB-2 National Interest Waiver category to foreign national entrepreneurs. Why does this matter? This article will explore the significance of this announcement, the corresponding policy initiatives and legal considerations, and suggest a few additional steps that the Agency might take to truly maximize the value of immigrants to our economic growth.
I. USCIS Announcement:
As background, this announcement appears to be driven by the renewed focus that the White House Council on Jobs and Competitiveness has placed on the special role of immigrants and our immigration policy to job growth and our economic competitiveness. There has long been criticism that the H-l B visa quota is artificially low, and that the country quotas, a relic of legislation that is now several decades old, are stifling and anti-competitive. While those topics are outside the scope of this announcement as they require legislative solutions, this announcement focuses on steps that are within the control of DHS and more specifically, United States Citizenship and Immigration Services, which is the Agency with authority to adjudicate applications for immigration benefits. The announcement makes it clear that the H-l B temporary visa category and the National Interest Waiver category, a form of permanent residency that does not require labor certification, are both available to immigrant entrepreneurs. The administration’s goal appears to be to stimulate additional foreign investment in the United States by offering immigrants and foreign entrepreneurs credible avenues for immigration and work authorization in the United States through companies that they establish.
This announcement does represent a policy shift, at least in the H-l B category. The now-infamous Neufeld Memorandum of January 8, 2010, had through administrative fiat suggested restrictions on the ability of a self-owned business to sponsor the owner for temporary H-l B status. This was at odds with years of prior policy and AAO decision-making. USClS’s announcement is certainly welcome as the Agency has reaffirmed the ability of owner-operated businesses to sponsor their owners for H-l B status as long as a valid employer-employee relationship is in place. While the announcement certainly does not affect many other long-standing legal requirements for an H-l B visa, it does eliminate what appeared to be a significant restriction on the ability of foreign national entrepreneurs and business owners to sponsor themselves for H-l B status established by the Neufeld memorandum. As such, it is an important step in providing foreign investors greater clarity and reliability in obtaining work-authorization in the United States. Yet, while this announcement is significant, it represents an incremental step. Once the economy returns to full strength, it is likely that we will return to the “good old days” (or bad days, depending on your perspective), when the entire quota of H-1 B visas for a given fiscal year was used up within days of availability. If the quota is not increased in the future, this will remain a persistent issue that will undermine the goal of using the H-1B visa category to stimulate foreign investment in the United States.
By comparison, the National Interest Waiver (NIW) category has always permitted entrepreneurs to apply for permanent residency. Unlike traditional investor-based categories, the issue in this category is not the size of the investment or the investor’s specific role in the business, but whether the entrepreneur can demonstrate that the establishment and operation of his/her business will produce significant national benefits and is of national interest. Creating jobs and employment in the United States is only one face of this impact as the entrepreneur can also demonstrate benefits to other areas of our national interest, such as scientific advancement or public health in the case of a new pharmaceutical company. The business plan and specific objectives for this business that the entrepreneur presents are certainly important. Equally if not more important, however, are the individual’s prior accomplishments. One example of a successful petition for a NIW includes an application from an individual with a recognized, extensive history of scientific research. Such an applicant could aggregate his/her business plans and prior accomplishments to showcase his/her collective prior and expected future impact on our national interests. Successfully showing that the foreign entrepreneur has contributed to the national interest in the past to a significantly greater degree than his/her peers is the key legal issue. Immigration attorneys and entrepreneurs should note that the benefits to our national interest will be viewed in light of the larger question, namely whether the foreign national can show that his/her continued residence in the United States will be of national benefit to the United States. Although job creation and corresponding economic benefits to the United States are certainly a significant net benefit, prior decisions and cases have consistently established that the benefits must be felt on a broader, nationwide scale and must not be localized in nature. Therefore, only creating a few jobs in one particular region without more could still be insufficient to meet the high standard for a NIW. What the announcement does not address is the persistent country quota-based backlogs in the NIW category for nationals of India and China. Since the availability of visas in this category is governed by the availability of visas in the EB-2 category, and there are currently three-to-four-year backlogs for nationals of India and China who are beneficiaries of EB-2 petitions, the attractiveness of a National Interest Waiver to investors from these countries is diminished. The relative current strength of the currencies of these countries and their greater insulation to a degree from global economic malaise makes the United States a particularly attractive investment destination for them. To the degree that the unavailability of visas interferes with this objective, Congressional action fixing the outdated country quota system incorporated into the Immigration and Nationality Act is needed.
II. Improving Entrepreneur Access to Other Visa Categories:
The H-1 B category and the NIW are not the only temporary or permanent visa categories that investors can utilize. Immigrant investors from nations with which the United States has signed appropriate treaties persistently utilize the E visa, while executives, managers, and specialized workers from qualifying multinational companies, including U.S. start-ups, often use the L visa. Entrepreneurs who can invest a million U.S. dollars (or half a million, in some cases) and create at least 10 jobs for U.S. citizen or legal permanent resident workers can use the EB-S investor category. Nevertheless, the trend in many of these areas has been towards more restrictive interpretations of these categories. To the agency’s credit, under the leadership of current Director Alejandro Mayorkas, USCIS has launched a series of initiatives to collect feedback from stakeholders, including immigration attorneys and advocates, about ways to improve USCIS adjudications. Uncertainties in the adjudication of applications for such classification interfere with the confidence of investors and willingness to make the investments in new business initiatives in the United States. Developing more consistent adjudication criteria for these visas would allow foreign entrepreneurs and investors to operate with greater assurances about the availability of work authorization and status in the United States for them, their family members, and essential personnel. This in turn would promote Congress’s goal of: (1) creating effective employment-based visa categories that promote business and trade in the United States; and (2) stimulating new investment and job growth in the United States. Given these high stakes, one hopes that DHS and the White House view this announcement as a first step, and not the destination in itself.
The original version of this article first appeared in the Globe, the newsletter publication of the Illinois State Bar Association’s Section on Intl. and Immigration Law.
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