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Greg Siskind on Immigration Law and Policy

AILA SUES USCIS TO FORCE AGENCY TO OPEN UP ON H-1B PROCESS

Rating: 6 votes, 5.00 average.

For several years, USCIS has been moving more and more to a secretive style of carrying out its role. Gone are the days when rules were published for comment. Examiners operate in anonymity. A two year appeals process and expensive fees mean that most people simply give up when their cases are denied. Examiners more and more frequently seem to be deciding cases based on their own made up standards rather than what the law requires.

I'm happy to report that the American Immigration Lawyers Association is taking the agency to court. Director Mayorkas all but begged AILA to do this when he suggested at its recent annual meeting that the bar and individual lawyers sue the agency when problems are not resolved. It's as if he needs the help of outsiders to help reign in an agency that is seemingly ungovernable.

Here is the press release:

Today the American Immigration Council's Legal Action Center filed a lawsuit against the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA) seeking the public release of records concerning agency policies and procedures for the "H-1B" visa program - a program which allows U.S. businesses to temporarily employ highly-skilled foreign workers.

AILA had pursued disclosure of the documents through two separate Freedom of Information Act (FOIA) requests, both of which were denied in full by the government. In its complaint filed in U.S. District Court for the District of Columbia, AILA seeks the court's intervention to compel the government to release the requested records.

The FOIA litigation centers on the government's H-1B visa review and processing procedures. The H-1B program, administered by USCIS, allows U.S. businesses to temporarily employ foreign workers - such as scientists, engineers, and computer programmers - in occupations that require theoretical or technical expertise in specialized fields. Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections - expected to reach 25,000 visits in 2010 alone - in connection with H-1B cases. Yet USCIS has kept secret the rules and guidelines related to the review process. The dearth of publicly available information on the government's heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.

"The requested documents are the kind that a government agency should release as a matter of course," said Crystal Williams, Executive Director of the American Immigration Lawyers Association. "That we had to file a FOIA request, and that the request was denied, is counter to the President's directives for a more open and transparent government. This lawsuit seeks to require the agency to be true to the open government directives of the Obama administration."

"It is in the public and the agency's interest to release the documents sought by AILA," said Mary Kenney, attorney at the American Immigration Council's Legal Action Center. "The documents will help employers and foreign workers who seek immigration benefits comply with the law. Further, the agency violated FOIA when it issued wholesale denials of AILA's FOIA requests."

AILA is also represented in the litigation by Steptoe & Johnson LLP.

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Comments

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  1. Jack's Avatar
    Seems like this option hurts the DOJ's case on their "diverting resources and attention from the dangerous aliens" argument. The judge might ask, "Why should I preliminarily and permanently enjoin this law and forbid all state enforcement which might occur under it when the federal government has the discretion to pick and choose which aliens to pick up? Your stated policy is that you want to detain the 'dangerous aliens' and would not an injunction result in dangerous aliens being let go?"

  2. My 2 cents's Avatar
    I hope AILA can take up the EB backlog & recapture of unused visas issue too if that's possible. If Mayorkas hinted on the H1 issue then it's a clear indication of dysfunctional agency & needs a thorough shakedown. Why can't he get this done if he is sincerely seeking a reform in the way USCIS works?
  3. George Chell's Avatar
    "I hope AILA can take up the EB backlog & recapture of unused visas issue too if that's possible. If Mayorkas hinted on the H1 issue then it's a clear indication of dysfunctional agency & needs a thorough shakedown. Why can't he get this done if he is sincerely seeking a reform in the way USCIS works?"

    Most of the federal government is dysfuntional like a boss working on international affairs asking an employee born in India (US citizen) to work on Pakistan with a line..."you people all look the same anyway!" despite the fact he (that employee) will not get the visa to visit Pakistan...they simply dont like anyone of Indian origin over there..and he says..that is surprising.."you people look the same anyway!"
  4. waiting in line for years, when will i get there?'s Avatar
    "I hope AILA can take up the EB backlog & recapture of unused visas issue too if that's possible. If Mayorkas hinted on the H1 issue then it's a clear indication of dysfunctional agency & needs a thorough shakedown. Why can't he get this done if he is sincerely seeking a reform in the way USCIS works?"

    This might be a lot to ask from AILA, how about simple question that AILA can ask DOS/USCIS, How many visa did you waste or are you in process of loosing this Fiscal Year, we are almost done with FS2010, EB3 row was assigned 42+ K visas, and USCIS inventory showed 56+K I-485 pending (as of 8/25/09) and now it shows 43+K pending (as of 5/27/10), so with a simple math they processed ~13K visas AOS application (giving 25% for Consular processing ~ 11K ), totals to ~23K applications, and now I agree with your statement "it's a clear indication of dysfunctional agency & needs a thorough shakedown".

    When Immigration is a hot cake in Washington, and this news http://bit.ly/cWOt9e will certainly make us doubt anything will happen in near future.

    As AILA is doing its best (I think or may be not doing enough), and when Sen. Reid said at NetRoot Nation: "I'm told, there are times I get on your nerves. And there's also times when you get on my nerves." I dont think we can expect any legislative or Admin fixes, except one Admin fix by USCIS that is to increase Fees and keep us waiting.

    Having said this, our wait is long and we have very hard decision to make, now I understand what then Sen. Obama meant to say "We might not get there in a term or two, but know this America (in this case Immigrants) we will get there".

    Peace
  5. My 2 cents's Avatar
    Regarding the recapture of the unused visas, I suppose USCIS could recapture the visas without legislation from the Congress (please correct me if I wrong on this). If this is the case, AILA could take them to court for wasting the visas (EB & FB) over all these years.
  6. My 2 cents's Avatar
    I forgot to add the DOS along with USCIS in my previous post.
  7. LFWF's Avatar
    "Regarding the recapture of the unused visas, I suppose USCIS could recapture the visas without legislation from the Congress (please correct me if I wrong on this). "

    You are wrong on this. USCIS has considered this and concluded with certainty that they cannot do it.
  8. USC's Avatar
    "You are wrong on this. USCIS has considered this and concluded with certainty that they cannot do it."

    Figure 19, Page 35 of the Ombudsman report that Greg linked has this to say:

    "Note: The Unused Employment Preference Numbers total is used in calculating the following fiscal year's Family Preference numerical limit, and vice-versa."

    "Unused Employment Preference numbers did not fall across to the following fiscal year's Family Preference limit (and vice versa) until FY 1994."

    It appears that the FB categories haven't got any of the wasted EB visas since 1999 while the 10,662 FB visas that were wasted in 2009 were given to the EB categories in 2010 and the 2010 EB limit is 140,000 plus 10,662 or 150,662.

    Perhaps, Greg, can shed some light as to why the INS has been giving the FB visas to the EB categories but not vice versa.
  9. LFWF's Avatar
    The spillover from EB to FB or vice versa is only meaningful if USCIS were to actually allot all available numbers. If 10 numbers went from FB to EB, and the following year USCIS wasted 20 EB green card numbers, the spillover becomes meaningless. Since USCIS was falling short every year, the numbers are simply wasted. With recently increased efficacy for EB, some spillover from FB has finally been used. This year FB is headed for another shortfall and EB may have extra numbers next year.
  10. USC's Avatar
    "The spillover from EB to FB or vice versa is only meaningful if USCIS were to actually allot all available numbers. If 10 numbers went from FB to EB, and the following year USCIS wasted 20 EB green card numbers, the spillover becomes meaningless."

    Seems a crazy way of doing things but I guess thats why I refer to them as the INS.

    In any event, keeping your comments in mind, I had another look at Figure 19, still nothing makes any sense. In fact, I am even more confused. In 2003, it appears that INS wasted 153,000 visas. What exactly happened then?
  11. AJ's Avatar
    "In 2003, it appears that INS wasted 153,000 visas. What exactly happened then?"

    1. Labor certifications filed to beat Sec 245(i) expiry in April 2001 piled up at DOL state offices around the country.

    2. Alongwith the dotcom recession, this surge meant that DOL did not certify enough applications that could use the 2003 visas.

    3. When applications were approved again starting 2004, they used up the excess visas recaptured as part of the AC21 legislation (year 2000).
  12. USC's Avatar
    "1. Labor certifications filed to beat Sec 245(i) expiry in April 2001 piled up at DOL state offices around the country."

    Okay. But the breakdown for 2003 was FB wasted 64,422 and EB wasted 88,482. What's their excuse for wasting the FB visas? Also in 1999 INS wasted nearly a 100,000 (98,941) EB visas. That is simply outrageous.
  13. AJ's Avatar
    There were new procedures put in place for security checks by the USCIS around that time. That slowed approvals down as well.
  14. My 2 cents's Avatar
    What's the total number of visas wasted in both EB & FB categories since 1997 to date? If visas were wasted before 1997 what would the total be?
  15. AJ's Avatar
    "This might be a lot to ask from AILA, how about simple question that AILA can ask DOS/USCIS, How many visa did you waste or are you in process of loosing this Fiscal Year, we are almost done with FS2010, EB3 row was assigned 42+ K visas, and USCIS inventory showed 56+K I-485 pending (as of 8/25/09) and now it shows 43+K pending (as of 5/27/10), so with a simple math they processed ~13K visas AOS application (giving 25% for Consular processing ~ 11K ), totals to ~23K applications"

    If it is indeed known that these visas will be wasted this year, then the only option is to approach the courts right away to stop the clock as it were. By law, there is nothing that can be done, once 10/1/2010 rolls around.
  16. Sid's Avatar
    "EB3 row was assigned 42+ K visas, and USCIS inventory showed 56+K I-485 pending (as of 8/25/09) and now it shows 43+K pending (as of 5/27/10), so with a simple math they processed ~13K visas AOS application (giving 25% for Consular processing ~ 11K ), totals to ~23K applications"

    Your simple math ignores the fact that there were new applications filed during the year.
  17. LFWF's Avatar
    The total wasted visa numbers are estimated to be in the range of 316,000.
  18. George Chell's Avatar
    "The total wasted visa numbers are estimated to be in the range of 316,000."

    And about three times the number of jobs move abroad every year!
  19. My 2 cents's Avatar
    Just passing a legislation to recapture the unused numbers with a provision to have recapturing of unused visas every year could do away with the backlog in the short run (till they figure out how to reform the broken immigration system). Now that the number of H1B are way down so the AOS applications would significantly less.
    If the INS is sincere in this matter why aren't they pressing the Congress to pass legislation to recapture the visas. They are happy to maintain the status quo.

  20. Adi's Avatar
    http://www.cbsnews.com/stories/2010/07/27/national/main6716885.shtml

    Nebraska town nixes immigration law to save $$
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