Specifically, the agencies announced this past week that the two agencies will now streamline the NEXUS membership renewal process, by waiving the former interview requirement for members who have not had “changes to their information” and have maintained “low risk status.” Further, the two countries have begun enrollment blitzes, by expediting processing and further promoting the NEXUS program.

Specifically, as of April 20th—only 20 days into the annual year—25,000 out of 65,000 cap eligible applications had been receipted under the general quota, and 10,900 applications out of 20,000 for the U.S. Masters Degree or higher quota. As the numbers diminish, there tends to be a rush by employers to capture the remaining numbers.

During the course of the day, I met with staffers from five different offices of the Washington delegation.  These included Rep. Jay Inslee (resigned), Rep. Doc Hastings, Rep. Norm Dicks (retiring), Rep. Rick Larsen, and Senator Murray.  My own representative, Rick Larsen, though very busy, made time to stop in and talk with us for a little while.  Thank you Rick.

The need for immigration reform persists.  Ever since I started practicing immigration law, before 9/11, there have been calls for immigration reform.  Businesses need a system of immigration laws that is responsive to their competitive needs and an evolving international business climate. Families need reform for the immigrant visa backlog (20+ years in some cases), and draconian, disingenuous laws regarding unlawful presence, to name just a few things. This year it seems that even a bipartisan successful law like the Violence Against Women Act can be fuel for partisan fires. Longtime advocates are left shaking their heads, shell shocked.

When I talked to staffers, a certain fatigue comes out when it comes to immigration issues.  There’s a certain “What can we do?” attitude, where everything has been tried, but has failed due to partisanship.  And it’s no secret–there is a real divide in Congress on a slough of issues, pitting the reds against the blues. The “insider view” now seems to be that real change in our immigration laws may only happen after one of the two political parties suffers significant losses in a key state, due to a changing demographic.  This could take one or two election cycles, at least. But then there’s also a sense of “You never know–something might come up,” especially when it comes to immigration enforcement measures. Once upon a time, it was always vogue to be tough on crime. In some places, it seems its now always good to be tough on immigration.

This is not good enough.  Business is right to expect more of Congress.  So should families, schools, non-profits, undocumented, local governments, and every other interest that immigration issues cross.  In recent years, I increasingly hear that Washington D.C. is broken, that the system is failing.  Immigration is one of THE two or three issues where our elected officials have an opportunity to prove the pundits wrong.  It won’t get done though, if “issue fatigue” is tolerated, and “political realities” carry the day.  In the case of immigration, the stalemate has lasted a decade or more. Those who are elected to govern need to govern.

The conference was a success, by all reports, with nearly 300 attorneys in attendance, and two full days of immigration law panels. The conference was held at Seattle University’s School of Law. As a condition of practicing law, lawyers are required to regularly take continuing legal education courses, with a required minimum in ethics.

Greg’s panel was entitled “Border Issues and Solutions,” and featured Greg, Diane Butler of Lane Powell, and U.S. Customs and Border Protection Supervisors Shari Barnes and Jonni Galarza. The panel discussed such things as expedited removal, the Beyond The Border agreement between the U.S. and Canada, and possible coming changes to entry/exit documentation (I-94s).

My panel was entitled “Ethical Issues In Immigration Practice.” My co-panelist was Steve Crossland, Washington State Bar President. Steve and I discussed a number of hot topics in ethics for immigration lawyers, including disclosures regarding dual representation; limited representation agreements and fee agreements; a licensing fee referendum; and a proposed change to the Rules of Professional Responsibility.

H-1Bs are a popular work authorization status for professionals. The category is reserved for “specialty occupations.” According to USCIS, a specialty occupation “requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.  For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.”

Congress has establish annual caps for the number of H-1B workers approved each year. There is a basic cap of 65,000, as well as an additional 20,000 for graduates of advanced degree programs from U.S. schools (e.g. Masters or higher). There are other rules related to cap administration, such as cap exemption and free trade allotments, but basically, there is one big pool of numbers available each year to most employers. When this pool dries up, most employers have to wait until the next fiscal year if they wish to use the program again.

The H-1B cap opens up on April 1st each year, for start dates commencing on October 1st or later. Going back a few years now, the cap used to fill in the first week, due to high demand for H-1B numbers. The agency held lotteries because they received too many applications on April 1st. Times have changed, and for the last couple years, the cap has filled between November and January.

Nobody knows how fast the cap will fill this year, though the numbers seem to go as the economy goes. Broad economic indicators point towards a gradual improvement of the economy, and so it is not unreasonable to expect the numbers to go a bit faster this year. I very much doubt the numbers will be exhausted in the first few months, but late summer is not unrealistic. The bottom line is if an employer wants to bring on a professional from abroad, now is the time to be thinking about it.

In brief, any type of criminal proceeding can have an effect on a person’s ability to enter the United States, even if that proceeding does not end with a conviction. The U.S. places the burden of proof of admissibility on applicants for admission, and so frequently CBP officers will request to review court records to make their own determination on whether an applicant is admissible. Criminal defense attorneys in and outside the United States should consider the U.S. immigration consequences of criminal activity early on in the representation, if traveling to the U.S. is a client concern. Post conviction relief is very limited after a person is convicted. The U.S. immigration laws do not typically recognize Canadian pardons.

My presentation will lay out the law in more technical terms than this, and will at some length discuss various bases of inadmissibility, such as crimes involving moral turpitude, crimes involving controlled substances, and certain forms of conduct that do not even require a conviction to create a basis for inadmissibility. I will conclude by discussing the various forms of waivers that may be available.

USCIS uses the system to check up on the facts for immigrant and nonimmigrant petitions for business.  VIBE is supposed to verify things like when a business was started, current number of employees, and financial ability.

In practice, VIBE adds yet another layer of red tape to cut through in the pursuit of immigration benefits for key employees. In my experience, VIBE is often inaccurate.  The facts concerning a business change–they change locations, they have good years and bad years, and they hire and fire employees.  When a VIBE search comes back with different or no information on the business, the agency immediately issues a Request For Evidence (RFE) or Notice of Intent to Deny (NOID), seeking clarification. And creating delays.  In the world of human resources, a two week to two month delay in a hiring can have damaging consequences on a business.

Further, in responding, Petitioners are placed with the burden of making their case, by perhaps proving their existence, financial ability, or number of employees.  With limited guidance on how to satisfy the agency on these and similar points, Petitioners are obliged to respond in full, lest they risk denial.  Producing tax returns, wage reports, and property deeds can be burdensome, particularly in cases where businesses have multiple locations.

USCIS is obviously attached its VIBE system, and all of DHS is particularly focused these days on ferreting out fraud. Getting the story right is a necessary task for the administrative agency, but the agency also needs to do its research and be judicious in further burdening businesses. Issuance of RFEs and NOIDs should be sparing.  With the exorbitant filing fees paid today, the agency can reasonably be expected to seek validation through other means as well, before further burdening petitioners.

One final note.  The FAQ includes all sorts of information on how to update Dunn & Bradstreet with a business’s information. USCIS expressly says that updating with Dunn & Bradstreet is not required, and of course it couldn’t be, without revising the regulations on immigration petitions. But it sounds like USCIS would like to see businesses working with Dunn & Bradstreet. For businesses that are moving a fair number of employees into the U.S., this may make sense, rather than repeatedly respond to RFEs and NOIDS.

Their “standards” provide little indication of the actual complexity of L-1 petitions, as the agency does not nothing to spell out fundamental points, such as the differences between filing for an Executive (L-1A), a Manager (L-1A), or for a person with Specialized Knowledge (L-1B).  Submitting an L-1 petition at the border can be something like walking into a minefield, for the uninformed.

The good news is CBP’s published standards include new procedures for making sure a petition submitted to the agency is subsequently forwarded to U.S. Citizenship and Immigration Services (USCIS). USCIS issues the I-797 notices for L-1 petitions.  I’ve heard of cases where the issuance of the approval notice can take months, or may never actually occur. If approved, CBP will provide an L-1 work authorized stamp on an I-94 admission card, but the I-797 is needed too, especially in the case of a denial at the border, for purposes of appeal.

So, Canadians have the choice–submit at the border to CBP, or by mail to USCIS.  This is a significant choice in managing an L-1 application successfully.  I usually discuss a number of factors with clients, before making a recommendation on which way to go.

One obvious factor is timing.  A CBP-submitted petition can lead to a fast “Yes” or “No”.  In the case of a Yes, this can be absolutely terrific, as the decision is made typically the same day you go to the border. A USCIS petition will take months to adjudicate. For $1225 fee, petitioners can purchase “premium processing” from USCIS, and buy their way to an initial adjudication in 15 days.

Another factor is the strength of the petition.  If CBP has an issue with the petition, they may ask the petitioner to come back with more documents. Or, they may deny the petition outright. They may in fact grill the applicant at great length, pursuing suspicions of misrepresentation or fraud. Or, they may approve quickly. The fact is, there can be a great deal of variation in the quality of adjudication of L-1s by CBP officers.

USCIS can also be unpredictable with adjudications. Although I typically get good results, I think most long time immigration attorneys would agree that requests for additional evidence have become much more common with L-1s over the past five years. However, a request for evidence does provide petitioners with opportunity to respond at their convenience, in a limited time window, without the pressure of cross-examination.

One final factor I’ll mention here is the culture of the agencies.  In the big picture, I think it is good to recognize that CBP’s mission is primarily enforcement based, whereas USCIS’s mission is much more focused on immigration benefits.

While quick adjudications are desirable, even more desirable is an approval.

The application of law to the adjudication of merits-based green card petitions has never been straightforward. It has been my experience over the years that the agency tends to go through phases as far as how difficult a standard is applied in such cases. A great deal of subjectivity is involved. To give clients an edge, I’ve always been of the opinion that no matter what the particular merits of a petition are, you want to present to an adjudicator a petition that is organized and easy to understand, to perhaps get an edge over other petitions in the adjudicator’s queue.

The Ombudsman’s report and recommendations are revealing.  After researching the matter, the Ombudsman reports finding widespread confusion of the public and officers on how to respectively present and adjudicate such petitions. For instance, the Ombudsman states, “Stakeholders report that petitions adjudicated under the I-140 policy memo have resulted in decisions that are unfair, opaque, and inconsistent.”

Ouch. The Ombudsman here refers to USCIS’s confusing 12-22-1- memo entitled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions..”, which is related to the Ninth Circuit Court of Appeals decision, Kazarian v. USCIS. The memo has become a keen example of bureaucracy in its not-so-finest hour. Hopefully a rule-making will help clean things up a bit, but I’m not holding my breath.

It doesn’t need to be this confusing.  Consider the individuals under consideration for immigration benefits. Extraordinary aliens. Outstanding professors and researchers. Individuals of exceptional ability.  These are people that can help build the local economies and bring jobs to this country. These are people with choices of where they can live and build businesses in the world. These are people that build the American dream. Nitpicking over the adjudication of such petitions does little to help American business, economy or even world-image.

All new H-1B petitioners and beneficiaries should now expect a site visit as part of the H-1B process.  In particular, signatories to the petition need to be aware of all the underlying information in the petition, and alerted to the fact that they may be questioned out of the blue about the petition.  I know in some cases senior officers in corporations sign petitions which are primarily reviewed by subordinate Human Resource personnel.  A signatory who knows the material facts of the case and who is authorized and competent to speak to the matter on the spot is the best choice.

The agents will come with a scripted list of questions, though they may deviate from it. When site visits were originally ramped up—roughly two years ago—investigations were reportedly confined to basic fraud issues, such as whether the person actually reported to work, and whether the employer actually existed.

Not so now. After reviewing in detail an agent encounter with a client recently, I have to say  investigations have more the feel of a mandatory audit, rather than a simple policing of the program.

For example, questions asked by investigators during this visit included (1) Who paid the filing and legal fees for the petition?, (2) Work history?, (3) Education and training?; (4) Business entity questions (e.g. employees, locations); (5) Work and pay schedule?; and (6) Number of petitions filed by the employer in the past X number of years?  The investigators were working from a script of mandatory questions, produced presumably in Washington D.C.

As such, my conclusions are the government’s bureaucracy related to H-1Bs just keeps growing, and all H-1B clients have to have to be prepared for the eventual site visit.