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.
"Thank you so much to Kevin for helping out in my case. It was on going for over 5 years and I didn’t know when it would end. When the court date got closer I got even more nervous but Kevin made sure I was completely prepared and also helped out throughout the entire process and beyond until I received my naturalization. Thank you again Kevin and the Kriezelman and Burton Association! "
"Mr Burton helped me with very difficult immigration case. Through out the process, he showed An outstanding knowledge of the immigration proceedings, professionalism, and support. He knows how the system works and he knows how to deal with the people involved. Through out the process, he kept me informed and aware. He really cares about his clients welfare. My family and I very great full of what he done for us. "
"When it comes to immigration assistance these are the lawyers to go to. After several years, my husband and I cannot believe what Justin was able to do us in such a short time. There is not enough words to describe the help and relief Justin and his team provide my family. My only regret was not coming to them sooner. Thank you for everything! "
"Well organized and of course knowledgable."
"So far so good lets see what's gonna happen next . Helpful and organized"
"Best lawyer in town."
"The Best human being to have your back when you really need it !!! Mr Burton's professionalism and sharpness safe my family ....!!!!!"
"Excellent lawyer, I respect him very much."
"Justin was absolutely essential in helping me with my immigration process. He kept me informed throughout the years long journey. I would highly recommend Justin as an excellent immigration attorney."
"Best for emigration problems!"
"I would highly recommend this Firm For any immigration related matters"
"Bardzo miła obsługa! (Very nice service!)"
"Super lawyers with a high sense of professionalism and result-orientation. Matthew Kriezelman is a very lovable guy with so much humility, he helped with our asylum case. He is highly recommended and the firm gets a nod from me. Thank you Matt, thank you KB&A."
"My experience with Kriezelman Burton & Associates through my emigration process was so smooth. Nothing but true professionalism and help. Thank you Kevin Riaca"
"He was extremely attentive and responsive, and it was a great advocate for her clients. He was always quick respond to me anytime.Thank You!!"
"God bless this law firm, I was facing deportation charges, they helped me with my complicated case. I highly recommend this law firm, I am able to stay with my family, my kids and everyone I love. My attorney Lauren that represented me is beyond professional highly skilled and someone that truly cares about someone's life and we'll being, especially during very hard circumstances like these. She saved my life, that's all I can say. Thank u Lauren and ur firm, so much for taking my case and helping me get an opportunity to stay with my family. Thank u."
"Very professional, helpful and comfort place"
"BEST BEST BEST WORDS CANNOT EXPLAIN HOW THEY DO A GREAT JOB PLUS THEIR SERVICE IS EXCELLENT. LOVE THEM ALL AND BIG THANKS TO JUSTIN!"
"I had a phone consultation with the immigration lawyer Kevin. He is very helpful and very politely. Answered all my questions and gave me a lot of advice. Nice guy to work with. Will recommend you guys to this place if you need immigration help"
"I had great experience work with Lauren. She was affective and very professional, she saved me a lot of time and money. I highly recommend and thank you again. "
"This is a great attorney firm. Matthew Kriezelman is an amazing attorney. He is an expert with long pending immigration cases that are already denied or getting close to being denied. Our case of 17 years was finally resolved after we hired him. We had 3 previous attorneys who failed at their job and 3 other attorney firms we approached and all of them couldn’t help us. Some even told there was no hope. Matthew is a brilliant guy and understand how immigration works. I recommend him for anyone and everyone who is having a complicated case. "
"Brittni was a wonderful lawyer for us. We were so clueless about the green card process and Brittni was there all hours all days and answered every question promptly. She was extremely helpful knowledgeable and kind during our entire process. This is the only group of attorneys I would recommend - we had gone to several others before this one. Thank you so much for going above and beyond and always putting us at ease! "
"Kevin was handling our case from the first day. It was a long process for us but Kevin made sure that we were all prepared with the proper documents and what we needed to submit. In the end my husband got his green card. We can’t thank Kevin enough for his dedication and hard work. "
"My husband and I , hired Mr.Kriezelman and his firm for our complicated immigration case. But his team and himself, made sure that our case was taken seriously. My husband was finally able to meet and see his family after ten years. We’ll forever be thankful for their time, dedication and hard work that they put on our case. Also, want to thank Maria Salas for always being there to answer our concerns and questions throughout this whole lengthy process. "
"All people working good help "
"Thanks for everything! Jeffrey Kriezelman and Kevin Raica did an awesome job on my case. I would recommend them to anyone who needs the best attorneys in Illinois (and probably beyond). Highly recommend!"
"Liza received her green card last Friday and I can’t explain how happy we are. I wanted to send you a quick note and let you know we are so appreciative with the way you handled our case. We talked to a number of lawyers prior to meeting you, but there was something they were all missing and we felt we couldn’t trust any of them. You had a strong presentation and you sounded like you knew what you were talking about right off the bat. Regardless of a delay in the process, you certainly lived up to our expectations. We are so glad we met you and I just wanted to say thank you for your services."
"My husband was in a position to be deported and when I met Erin Cobb she jumped right on it and had it stopped and got him home with us. Later Lauren McClure jumped in to take over when Erin got too busy she jumped in like she had been with our case from the beginning! These two ladies saved our family from being separated and they worked their hearts out to make that possible! I will forever be grateful to them! If you need an immigration attorney these ladies are your people! Thanks so much ladies for all your hard work!!!!"
"I applied for citizenship and spoke to a few attorneys before meeting Kevin. Kevin is very knowledgeable as he has quite a few years in his practice. The atmosphere was always relaxed when working with Kevin, whether over the phone, via email or in person. When the time came for the interview with the immigration officer, that worked well too. Kevin and the officer knew each other. Kevin wrote up a very nice summary of my application for the officer to read. I am happy to say that I am now a citizen and if I choose to use the services of an attorney when I file for my wife-to-be, I will use Kevin and his firm. Thank you Kevin!"
"Thank you Matthew for your efforts. You were a great lawyer in your job and your personal transaction."
"After visiting couple of Lawyers Justin Burton was the only one saying homest that that case wont work Where others Just wanna $. Thank you And will go back ."
"Without a doubt these are the best immigration lawyers around. Notably, Brittni Rivera is extremely knowledgeable and helpful and always keeps her clients informed of what is going on. These are fighters in the courtroom for their clients rights. Don’t go to anyone else!"
"I have dealt with few immigration attorneys in the past and even had a consultation with Justin Burton. I did not choose Justin or anyone from his office at the time and it was a mistake on my end. It is exciting to see how professionally and with precision they are handling my case now. I was very fortunate to meet Brittni Riviera, since my case was transferred to her. She is the best immigration lawyer I have ever met. Her knowledge, helpfulness, sharpness and respect gave me confidence in my case and realistic understanding of what is waiting for me in the future. My case is not over yet, but I know that Justin, Brittni and their team is what I need. Strongly recommend to consider them in any of your immigration matters."
"Mr. Kriezelman is great lawyer , and wonderful staff. I truly recommended ..."
"Mr. Burton is a wonderful lawyer. We are very thankful for all of the helpful services that he has provided for us and for the very kind and helpful staff. They were all very reliable to work with."
"Doing their job very professionally. Highly recommend."
"I sought the help of attorney Matt Kriezelman on an immigration case very important to me and my family. Every minute of working with him was an absolute pleasure. Not only did Matt meet with me for every single question and concern that I had (and I had very many) , but he did so on several occasions even after his business hours were over. He has helped me understand every paper that he filed, every law that would apply to our case and every single problem that we might encounter. Needless to say, every problem that we did encounter, Matt resolved effortlessly, or at least he made it seem effortless. He spent countless hours on our case and we just purchased my aunt's one way ticket to the United States from Serbia, which compelled me to write this review. My family will forever be grateful to Matt Kriezelman for taking on our case and uniting us."
"Justin Burton and his entire team are amazing. Very professional people highly organized very helpful. I'm very pleased working with them . Grateful"
"Very professional people highly organized very helpful. I'm very pleased working with them . I would highly recommend working with them if you have any kind of immigration issues."
"The way that my wife and I met Attorney Kriezelman was nothing short of a miracle. We got a reference from a Social Worker at the clinic we were attending while my wife was pregnant and pretty much told us to go to some Downtown address. We waited for what seemed like forever not knowing who was coming or what to expect. When Attorney Kriezelman did show up, he asked us some questions - pretty much asking who we were. At the end of the meeting he said there shouldn't be any problems with the immigration process. The following week we signed some papers at his office. A couple weeks after that, we had a hearing and we were approved. My wife got her residency card like 2 months later. What a blessing! God bless Attorney Kriezelman!"
"My husband and I visited 2 local immigration lawyers before meeting with Erin. We live about 3 hours from Chicago in Indiana. Within minutes of meeting Erin we knew she was going to be the one to help our family. She was warm, welcoming, very patient as we asked a lot of questions over and over. You could tell that she was very passionate about helping others. If it wasn't for her help we wouldn't be where we are today. Driving 3 hours just to see her was well worth it. We would do it a million times over again! If you are looking for an immigration attorney, I very highly recommend her!"
"Justin Burton and his ENTIRE team are amazing! I first went to Justin a few years ago because I had accidentally missed my interview date with immigration and I did not know what to do nor what was going to happen next. If it weren't Justin, I would still be dealing with the long and tiring immigration process. Justin and his team are extremely knowledgeable and caring. They are very respectful and let you know exactly what the process will be like! I was so pleased with Justin that I asked him to help me with my parent's case just recently. Needless to say, everything has been successful all thanks to Justin Burton and his team!"
"This is the best guy in town. no doubts about that.he worth every money we spend on him. Im not gonna go thru all story but enough to say 5 different lawyers i visit before him was giving me a zero chances for me. Bets man i town!!!!"
"Erin Cobb did an excellent job helping my wife obtain legal permanent resident status in the US. She and her team prepared us for the expected hurdles, walked us through the application process, filed the necessary DHS applications, and finally attended our in-person interview for her Green Card. Her estimated timeline was accurate and there were no surprises. Thanks Erin."
"Justin was recommended to thorough a friend that does professional corporate hiring abroad , krilaw handles all their immigration processes for them. Justin and staff won my case where a couple lawyers failed to deliver. Krilaw is a structured professional kind firm, I have sent them numerous referrals since a started working with them. If you know lawyers and been through a few you will see the difference and appreciate them from the start, and if you haven't hired an attorneys service before you will appreciate their care and patients. No matter how much I rant here it won't serve them justice, go get a consultation, and you will see what I'm talking about."
"We hired Justin Burton in 2012 for an immigration matter for my husband. He let us know right away what to expect, and everything has worked out as he explained every step of the way. Everyone at the office has been accommodating and helpful. The times that he has been unavailable by phone, there has always been someone else there to help us out. We have no problem paying for a service when we are getting what we want in the end."
How did we do?
Note: Your review may be shared publicly.