Matter of K-S-Y: From Player to Coach
The AAO decided the Matter of K-S-Y in March of this year, finding in favor of the beneficiary judo coach. The judo coach was able to petition as an Alien of Extraordinary Ability (EB-1), based upon his expertise as a judo athlete. Alien of Extraordinary Ability is a pathway to Permanent Residence and does not tie the individual to a specific employer. The court decided that “area of expertise” may include the field in its entirety and not just one specific occupation within the general field.
The case specifically concerned a judo athlete making the transition from athlete to coach. Many coaches in sports begin as players and later make the transition when they retire as an athlete to a coaching position. The court recognized that athlete to coach is not the only career transition that may occur within an area of expertise, pointing to athlete to broadcaster and musician to instructor as other possibilities.
The EB-1 category is created for a petitioner to apply as an individual of “extraordinary ability.” This is a high standard to meet. The petitioner could not merely rely being an excellent judo athlete in his performance days. He had also taken many steps to establish himself as a coach. There are currently calls for USCIS to adopt this case as a precedential decision.
US House Bill Proposes Barring Certain Companies from H-1B and L-1 Visas
A bipartisan bill will be introduced in the House of Representatives to bar certain companies from obtaining H-1B, L-1A, and L-1B visas for their employees. Those companies are those that employ over 50 employees and have over 50% of their US workforce on H-1B or L-1 visas. Democratic Congresspersons Bill Pascrell from New Jersey and Republican Dana Rohrabacher from California have joined for the H-1B and L Visas Reform Act of 2016. The Congresspersons will introduce this bill because they see foreign companies as insourcing and exploiting foreign workers to abuse visa programs and undercut the American workforce. An interesting side note is that New Jersey and California are two of the states that have the largest concentrations of Indians (both Indians and Indian-Americans) and immigrants in general.
Both Congresspersons introduced similar legislation in 2010 that failed to gain any traction. This legislation comes off the heels of instances of H-1B fraud and additional fees imposed on companies that have over 50 employees and over 50% on H-1B or L visas.
Certain websites have headlines, such as US Lawmakers Introduce Bill to Prevent Indian Firms from Hiring on H-1B, L1 Visas. The headlines are not necessarily provocative as to point out blatant discrimination. The reason is that Indian IT firms are among the highest users of the H-1B and L visas. Their business model relies heavily on bringing foreign nationals to work in the US on H-1B and L visas. Indian nationals are the number one beneficiary of H-1B visas.
USCIS Ombudsman Report for 2016
Government agencies have an Ombudsman who issues reports to Congress and liaises between consumers and the agency to resolve problems. The USCIS Ombudsman released its report for 2016 at the end of June. Important issues for attorneys, individuals, and employers have been visa RFEs and visa delays, Employment Authorization Document application delays, fee waivers, the EB-5 program, and processing times in general. The Ombudsman’s report is over 100 pages. Here are some highlights:
- The Ombudsman noted the excessive number of Employment Authorization Document applications that are taking over 90 days to adjudicate, despite a regulation that states it must take place within 90 days. One seventh of the Ombudsman’s caseload related to delayed EAD applications. The Ombudsman writes:
“Thousands of EAD applicants and their employers continue to be negatively impacted by the agency’s failure to timely adjudicate Form I-765. The proposed regulatory changes will not improve processing times absent allocation of significant resources to meet processing times goals. The Ombudsman continues to highlight EAD issues as a systemic issue, and will monitor and engage the agency as long as this matter remains unresolved.”
- USCIS has a proposal to eliminate the 90 day adjudication requirement and replace that with an automatic 180 day extension of the employment card’s validity upon a timely filing. That proposal has not been implemented. The Ombudsman repeated that it has made multiple efforts and recommendations to rectify EAD issues over the past 8 years.
- H-1B, L-1A, and L-1B RFE rates have decreased from the previous year. This has been monitored for years because of high RFE rates. There are also discrepancies in RFE rates between the Vermont and California Service Centers. Those discrepancies persist.
- O-1 and P-1 visa petitions are receiving high rates of RFEs (49% and 65%).
- There is mixed data as to whether the Service Centers issue RFEs toward the end of the premium processing 15 day period as a delaying tactic.
- Processing times for Naturalization applications are highly variable by USCIS Field Office. Times range from 4 months to 9 months.
- Processing times for Permanent Residence applications are highly variable by USCIS Field Office. Times range from less than 4 months to over 10 months.
The Gang of 8: Comprehensive Immigration Reform Re-Up
Immigration reform looked imminent in 2013. The 2012 elections demonstrated yet another discrepancy in the Latino electorate voting for Democrats, much like 2008. President Obama had issued executive orders to implement the DACA program in 2012 as a stop gap measure before comprehensive immigration reform emerged. Republicans were amenable to working with Democrats on comprehensive immigration reform, meaning a bill that covered business immigration, border enforcement, family immigration, and pathways to citizenship to certain individuals without status.
The driving force was the Gang of 8 – a bipartisan group of senators that pushed for immigration reform. They were partly successful. The Senate voted to pass a bill for comprehensive immigration reform. The House refused to pass the bill and comprehensive immigration reform has remained elusive since.
Immigration has become a hot topic once again over the past year, taking center stage in the presidential election. The Gang of 8 was heralded in 2013 as the cooler heads prevailing amongst the hotter temperaments. If the Gang of 8 is revived after the 2016 election, it will most likely have to resist a vitriolic and divided atmosphere. The status of DACA plus and DAPA and dormancy of comprehensive immigration reform show that immigration reform has been nonexistent since 2013. In the vacuum, states have passed their own immigration laws.
Universities Get Creative: H-1B Visas After the Lottery
H-1B visas are normally subject to a lottery. Specialized jobs that require a Bachelor’s degree generally qualify for the H-1B visa. However, with a demand thrice the amount of the supply of 85,000, nearly 2/3rds of H-1B visa applicants are left on the sidelines without a visa and a lost job opportunity. For many individuals, the H-1B visa is the best and sometimes, only option. There are more than 85,000 visas available in the category. The reason for that is cap-exempt H-1B visas.
Certain institutions are exempt from the lottery, meaning that they can apply for the H-1B visa at any time of the year for a beneficiary. Instead of filing on April 1 for an October 1 start date and subjecting themselves to the randomness of a lottery, they are able to procure H-1B visas if their applications meet the standards for an H-1B visa.
Babson is among 6 US universities that is endeavoring to keep their talent in the United States by petitioning for beneficiaries as entrepreneurs through university-created residence programs. Programs of the sort are popular at universities throughout the United States. Using the program to connect the cap-exempt H-1B visa for foreign graduates is innovative. It is being called a “legal loophole,” but the paucity of visas totally incommensurate with supply has created an atmosphere where employers and universities will invent creative ways to obtain H-1B visas for their desired individuals.