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ABIL Members Submitted Comments on Immigration Policy to USCIS

The Alliance of Business Immigration Lawyers (ABIL) submitted comments on immigration policy on January 29, 2015, to the U.S. Departments of State (DOS) and Homeland Security (DHS). The comments, which respond to a notice published in 79 Fed. Reg. 78458 (Dec. 30, 2014), included proposals on modernizing the U.S. immigrant and nonimmigrant visa system.

ABIL proposed several general administrative reforms to reduce the complexity of the immigration system, promote program integrity and transparency, and stem fraud and abuse, including:

  • creating a single administrative tribunal for all immigration appeals, to harmonize and reconcile the "crazy quilt" of immigration legal interpretations issued by various administrative tribunals;
  • expanding access to legal counsel whenever an individual is interviewed by federal immigration authorities;
  • eliminating the systemic penalties and consequences of regulations that chill the right of administrative and judicial appeal;
  • adopting an expansive definition of immigration successorship in interest;
  • creating an agency to support and protect the economic benefits of immigration within the Department of Commerce or another cabinet department;
  • creating explicit immigration protections and benefits for small businesses;
  • establishing an IRS-style "private-letter-ruling" procedure for immigration stakeholders;
  • developing a streamlined, fast-track process for immigration guidance; and
  • deferring I-9 and IRCA enforcement when employees intend to file for DACA or DAPA.

ABIL also addressed various questions DOS and DHS posed. In response to a query about the most important policy and operational changes that would streamline and improve the processing of visas at U.S. embassies and consulates, ABIL recommended expanding the I-601 provisional waiver program and allowing consular reviewability on a pilot basis for immigrant visas and specific employment-based nonimmigrant visa categories, and expanding the nonimmigrant visa reissuance program. To streamline and improve USCIS processing of visa petitions, ABIL recommended clarifying L-1B adjudications; establishing more predictability in E-2 adjudications; granting work authorization to more nonimmigrant spouses; extending the H-1B cap gap fix to J-1 exchange visitors; and allocating national interest waiver green cards to qualifying regions to stimulate the U.S. economy.

Among other things, DOS and DHS also asked what policy and operational changes would attract the world's most talented entrepreneurs who want to start and grow businesses in the United States. ABIL recommended that DHS partner with states that wish to attract talented entrepreneurs from overseas. ABIL noted, for example, that Massachusetts has launched a "Global Entrepreneur in Residence" (GEIR) program. The GEIR facilitates partnerships with institutions of higher education to provide part-time work opportunities to foreign graduates who are entrepreneurs and want to grow their companies but cannot remain in the United States due to the H-1B visa cap. A university, as a cap-exempt employer, can sponsor a foreign national who will not be counted toward the numerical limitations. Nonprofit affiliates to institutions of higher education can also qualify as cap-exempt employers.

ABIL also suggested that USCIS make the H-1B visa process easier for entrepreneurs who have founded their own startups. Instead of requiring separate ownership and control over the entrepreneur, which may require an entrepreneur "who has given sweat and tears in organizing a startup…to cede all control in exchange for the H-1B visa," USCIS should follow decisions that recognize the separate existence of a corporation as a distinct legal entity. As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship.

ABIL's recommendations on the EB-5 immigrant investor visa process included reducing processing times for EB-5 project applications; expediting I-526 processing for investors in an approved project; processing all I-526s in the same project together; implementing a separate processing queue for investors subject to quota retrogression; and having a separate processing line for direct EB-5 investors.

Finally, ABIL recommended substantially revamping the information technology infrastructure used for immigration benefits, including achieving interoperability of separate online databases maintained by disparate federal immigration agencies. ABIL also said that all electronic forms should include data fields that allow unlimited entry of text, since many questions cannot be answered fully with just "yes" or "no."

ABIL COMMENTS, which contain additional recommendations and details.


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