25 Years of McCuistion: Immigration Policy from 1990-2015

Let’s face it: people love to be in love.  As the famous playground tune, sung in numerous languages and versions around the world, goes: “[Name] and [Name] sitting in a tree, K-I-S-S-I-N-G, first comes love, then comes marriage…” the institution of marriage is recognized by many cultures as the next step in the circle life once a couple has falling in love.

The great thing about love is that it knows no boundaries; religious, cultural or geographic.  As immigration lawyers, we see this day in and day out as people come to our office looking to bring their foreign fiancées, husbands or wives to the US.  Perhaps they met while studying abroad, travelling for pleasure or business, or online.  Regardless of how they met or the nature of their relationship, the common denominator among them all is that they are in love and want to start a life together in the US.

For individuals trying to bring their fiancée to the US, there are many considerations to take into account.  The process of obtaining the fiancée visa itself is complex and in some countries, may take a year or more to complete. During this time, the foreign national must remain in his or her home country until the visa process has been completed. Many couples fail to understand that immigration law requires that the wedding take place within 90 days of the fiancée entering the U.S. on their K-1 fiancée visa.  As if wedding plans aren’t difficult enough, trying to work out immigration papers in the midst of planning the big day can be a nightmare.

Depending on a couple’s cultural or religious traditions, they may prefer to get married abroad, in lieu of, or in addition to, having a more westernized wedding ceremony.  When a couple marries abroad and decides to process their immigrant visa at the local US consulate, the processing times and potential delays can be discouraging, especially given personal considerations such as family planning and employment goals.

Whether it’s investigating the qualifications for applying at a particular consular post, evaluating the reputation of a consulate to determine where a foreign national should process their immigrant visa or fiancée visa application, or helping the client present a flawless application proving up the bona fides of their relationship, our firm guides our clients through every step of this daunting process to ensure that their immigration matters don’t get in the way of their happily ever after.

In high school, my civics teachers’ mantra was “Freedom is relative, not absolute!” As a young kid, that phrase didn’t hold a lot of meaning to me.

50 years, a wife and kids, and a successful law practice, have made me realize that freedom is meaningless chaos without responsibility. Even the freedom to drive an automobile requires the responsibility to obey the traffic laws and drive safely.

Let’s look at the U.S. Government, U.S. citizens, and immigrants today:

• The Senate was free to pass a comprehensive immigration reform bill last year which covered more visas for workers at all levels, enhanced border security, and a path for illegal aliens to become legal.
• The House was free to dislike the Senate bill and last week, passed a bill enhancing border security and overturning the administrative action benefiting illegal aliens brought to the U.S. as children.
• The President was free to enact an administrative measure called the Deferred Action for Childhood Arrivals and consider other administrative actions to enhance border security and defer deportation of other classes of illegal aliens.
• Illegal alien children from Central America under a 2008 law are free to cross the border, turn themselves in, and have the right to a hearing before being admitted or deported.
• Illegal adult aliens are free to complain about the lack of comprehensive reform they believe they deserve because they work hard, pay taxes, and aren’t criminals.
• U.S. citizens are free to complain about the presence of illegal aliens in the U.S. even though they often are hiring them directly or indirectly and complain when they get fined and their illegal alien gets deported because of antiquated laws.

Does anyone else see the disconnect between the freedoms above and the lack of responsibility to come together to find solutions?

The concerns are genuine: border security, humanitarian care, safety and health, and a 21^st century international and mobile workforce. The solutions are hard and will demand compromise but isn’t that the role of the U.S. Government and our leaders? Immigrants who are not legally here don’t really have a free voice nor should they but U.S. citizens need to come together and tell our leaders we need solutions and compromise is not a dirty word.

We work hard for our clients to understand the difficult and often conflicting immigration laws that make their business and personal lives a challenge to manage.

By failing to address the need for immigration reform, America is losing its ability to attract and secure highly skilled workers, which negatively impacts this country’s economy and global competitiveness.

One example to this negative societal impact is the H-1B nonimmigrant visa, which allows U.S. employers to temporarily employ foreign workers in specialty occupations. Specialty occupations are defined as jobs that would normally require a minimum of a bachelor’s degree in a specific field. In FY 2013, the top 10 H-1B occupations were:

• Computer Systems Analyst
• Computer Programmer
• Computer Occupations – All Other
• Software Developers – Applications
• Computer and Information Systems Managers
• Software Developers – Systems Software
• Accountants and Auditors
• Management Analysts
• Network and Computer Systems Administrators
• Financial Analysts

Source: http://www.foreignlaborcert.doleta.gov/pdf/h_1b_temp_visa.pdf

When the H-1B program was implemented, the US government restricted the number of H-1B visas allowed each fiscal year: 65,000 for individuals with a Bachelor’s degree and an additional 20,000 for individuals with a Master’s degree or higher. Due to the excessive number of H-1B applications received each year (172,500 applications for fiscal year 2015 were received within 6 days of the filing period being opened), U.S. Citizenship and Immigration Services (USCIS) initiates a computer-generated random selection process, or lottery, to determine whose H-1B petition is selected for adjudication. Applications not selected in the lottery are returned to the applicant, along with the associated filing fees. In April of 2014 (when applications were accepted for FY2015) this resulted in almost 100,000 applications being rejected by the USCIS.

Employers whose applications were rejected were forced send their H-1B candidates back to their home country, and search for new employees, resulting in significant loss of revenue, technological setbacks and deadlines not being met.

In addition to eliminating the ability of the American employer to secure a highly-specialized “player” to help further its business growth, the H-1B cap creates a significant lost opportunity for the American economy in that these highly-skilled immigrants want to come to our country and contribute. As many American industries still attempt to recover from the latest recession, the avoidance of additional job creation opportunities makes absolutely no sense. According to the Partnership for a New American Economy (PNAE), “H-1B visa denials in 2007 and 2008 caused these [high-tech] areas to miss out on creating as many as 231,224 tech jobs for American-born workers in the years that followed…[as well as] cost U.S.-born, college-educated workers in computer-related fields as much as $3 billion in aggregate annual earnings.”

Unfortunately, the H-1B cap issue is only the tip of the immigration reform “iceberg.” The United States must remain competitive, and the only way to do that, is to fix our broken system immediately.