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Kirsten Schlenger: USCIS Business Immigration Engagement in San Francisco

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Kirsten Schlenger: USCIS Business Immigration Engagement in San Francisco

July 21, 2017

Yesterday, I stepped away from the craziness of daily executive proclamations and fears of our immigration policies leaping backward to participate in a U.S. Business Immigration Engagement. Setting aside the funding of a massive deportation machine and a border wall, as well as the tantalizing hope of a bipartisan Dream Act, I immersed myself, together with a roomful of local business immigration attorneys and some USCIS, Department of Labor and State Department personnel, in an entertaining and informative full-day program.

We heard from and engaged with government officials charged with conducting onsite H-1B fraud-detection site visits as well as H-1B wage-and-hour investigations. As an attorney whose employer clients work hard to comply with the H-1B rules, I always wonder just how much real fraud is going on in the H-1B program. My question about this remains unanswered, but my suspicion is that the program is far less riddled with fraud than the USCIS suggests it is.

When the government speaker suggested that attorneys and their clients should assist as much as possible with onsite investigations, one attorney noted that when attorneys are not looped into communications with our employer clients, that assistance is impaired. Later, an appreciable shudder went through the mostly attorney audience when a speaker noted that there is a pilot program to further the President’s Executive Order to “Buy American, Hire American,” and that employers should be transparent, providing ads to show that they tried to hire Americans for H-1B positions. A few audience members reminded the speaker that the current H-1B laws (with the exception of those applying to H-1B dependent employers) do not require testing the market to prove that there are no U.S. workers available for an H-1B position, and employers are expressly forbidden by law from inquiring about or using a person’s nationality in determining who to hire. In effect, the directives from the Executive Order and possibly the new pilot program may conflict with the existing H-1B and non-discrimination laws. Alert —we must remain vigilant in holding investigators to what the law is.

The presentation on the EB-5 Investor program was very engaging, even though our firm does not do these cases, leaving them to those with a higher toleration for risk. The economist/government speaker clarified that the perception that this program is riddled with fraud is incorrect, noting that because the fraud that does occur involves lots of money, it gets disproportionate attention. In fact, the level of fraud is significantly less than the norm on Wall Street. (I am not sure how comforting that is.) He went on to highlight some of the complexities and challenges of reviewing the proposed projects and hiring requirements in the program, leaving the impression that this unit of the government is earnestly striving for efficiency and timely decisions but faces significant issues in sorting through the complex documentation required to make its decisions. He and the other speaker who oversees the program left the impression of being can-do and reasonable, emphasizing that this investment program’s benefits to the United States are significant.

The last of the morning programs was equally entertaining, led by a duo of Department of Labor Wage and Hour Division government employees who are passionate about their work in ensuring that workers are fairly treated and paid. With a dry sense of humor, they walked us through how an investigation can be started and what their focus is. Although they have never previously experienced an investigation started by the Secretary of Labor, this is one of four mostly complaint-driven methods that is possible. Under this administration, it is possible that one or more investigations could be initiated directly at the request of their ultimate boss. Such a Labor Secretary-initiated investigation could go back beyond 12 months, which is not the case for the other types of complaints. As for focus, they said they are all about the employer’s intent. Small technical violations and employer “gotchas” are not what they are looking for. Once again, when one speaker veered into a suggestion that posting a Labor Condition Application was meant to protect the U.S. worker and enable U.S. workers to receive preference in filling an H-1B role, the attorney audience was audibly atwitter. A few audience members clarified that only the H-1B dependent or willful violator employers are required to do a test of the labor market for potentially qualified U.S. workers in the H-1B context. Most of the employers in the H-1B program need not and in fact cannot give preference to U.S. workers in hiring.

Following our lunch break, we were treated to a celebrity appearance and excellent presentation by Charles Oppenheim, the Immigration World Rock Star behind the allocation of visa numbers and the omnipresent Visa Bulletin. His three slides on exactly how he decides on the visa numbers — crystal ball, Siri, wheel of fortune — kept us chuckling, as we are mystified about just how those numbers move forward and backward. He then took us through a very informative explanation of what information he has and uses to make his estimates, always with the goal of maximizing the annual use of the available numbers. Responding with sensitivity to our and our clients’ angst about his use of “U” for “Unavailable” visa numbers — leaving clients to feel without hope — he switched to using a date certain that went so far back that no qualifying applications would exist to proceed, which nevertheless provided hope of future numbers for our clients. Following the program, due to his celebrity, several audience members had their photos taken with the numbers guru.

The final hour was spent with four immigration attorney panelists, myself included, moderated by the mastermind of the engagement program, Carol Keller, Chief of Staff of the USCIS’ San Francisco District Office. She took us and the audience through some questions and answers on today’s trends and the challenges of counselling our clients and getting business immigration petitions approved in the current environment. Our goal was to highlight what is happening and provide practical tips and solutions for improving the chances of success for our clients. Again, the actively engaged audience contributed to the discussion of emergency advance parole requests, the state of Level 1 H-1B positions, and the disconnect between the Department of Motor Vehicles and USCIS, leaving our clients with gaps with their driver’s licenses. While attempting to remain upbeat, we closed the day with our takeaways and main tips for business immigration attorneys. My advice is “More Is More” — more explanation, more documentation, more time and effort — as well as patience, as petitions will just take more time and effort. Finally, view this environment as an opportunity to demonstrate your creativity and abilities as an attorney and advocate. 

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