Our Global Immigration and Mobility Practice found 2014 to be a fairly routine one, at least as the past several years have gone. Frankly, it was one filled with a lot of frustration for our corporate and foreign national clients – and for us as well. Our U.S. immigration laws continue to be outdated and not in sync with the current needs of U.S. businesses and employers. However, as we head into 2015, there is some optimism that we’ll begin to see improvements due to President Obama’s series of Executive Actions on Immigration Accountability, and perhaps further we’ll see Congress spurred into tackling some immigration reform on at least a piecemeal basis.
Once again in 2014, the quota of available H-1B nonimmigrant visas for professional workers was well oversubscribed. The immigration service (USCIS) again accepted all petitions received that first business week of April – 172,500 petitions from U.S. employers toward the allotment of 65,000 general-category and 20,000 advanced-degree visas. USCIS closed the filing period on April 7, 2014 and then conducted a random lottery of all petitions received through that day. So, as has been the case over the past several years, a substantial number of foreign nationals and the U.S. companies that were seeking their services were left out in the cold. Fortunately for many of our clients we were able to ensure the foreign national’s continued employment eligibility in their foreign student status or find other nonimmigrant visa options for them.
Another source of frustration for our corporate immigration clients and their foreign national employees (especially those born in India and mainland China) continues to be the extraordinarily large backlog of employment-based immigrant visas – where it can literally take decades for a foreign national who is being sponsored by their employer to obtain their U.S. permanent resident (“green card”) status. For example, in January 2014 the employment-based immigrant visa queue was at September 1, 2003 for Indian nationals in the 3rd preference category – a backlog of over 10 years. By the end of the year, the date has only moved 3 months to December 1, 2003. So that 10 year backlog really is looking like a 40 year backlog!
Additionally, 2014 was the year of the RFE – Requests for Evidence from USCIS. One would expect, and want, USCIS to be diligent in their processing of immigration petitions. But 2014 was filled with RFEs that bordered on abusive with boiler-plate requests asking for irrelevant documentation or documentation that had already been provided, and making challenges and taking positions that seemingly had no rational basis. Of course we overcome all of these obstacles and get the deserved successful result, but at a cost of time, money and frustration to our corporate and foreign national clients alike.
Finally, on a positive note, we continue to see a growing demand from our corporate clients to send key executive, managers and employees to work in their offices abroad – the movement of key personnel to wherever in the world they can best benefit their employer. It is quite enlightening to see how progressive and welcoming other countries are in terms of working visas available to professionals and skilled workers.
As 2014 came to a close, on November 20, 2014, President Obama announced his immigration accountability executive actions, a series of administrative tweaks meant as first steps towards a comprehensive, legislative overhaul of the U.S. Immigration System. While much of the attention has been focused on the deferred action and employment authorization for a certain portion of the undocumented population, there are also significant benefits for those who are here legally and already in the employment-based process, especially those foreign nationals who are subject to the burdensome visa backlogs. And there are also additional benefits for foreign students with U.S. degrees in Science, Technology, Engineering and Math (STEM), as well as new options for foreign entrepreneurs, inventors and researchers.
It continues to be an exciting and fluid time in our practice – all of the professionals within the Global Immigration & Mobility Practice Group look forward to the challenges and opportunities ahead in 2015, and to providing the highest level of service to our corporate and foreign national clients.
This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.