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Request For Comments On Improving The Immigration Process Administratively

Discussion in 'Executive Action' started by Ron Gotcher, Dec 31, 2014.

  1. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Immigration Policy

    A Notice by the State Department and the Homeland Security Department on 12/30/2014
    Publication Date:
    Tuesday, December 30, 2014
    Agencies:
    Department of State
    Department of Homeland Security
    Dates:
    Responses must be received by January 29, 2015 to be considered.
    Entry Type:
    Notice
    Action:
    Notice of Request for Information.
    Document Citation:
    79 FR 78458
    Page: 78458 -78460 (3 pages)
    Agency/Docket Number:
    DHS Docket No. USCIS-2014-0014
    Document Number:
    2014-30641
    Shorter URL:
    https://federalregister.gov/a/2014-30641
    Action
    Notice Of Request For Information.

    Summary

    On November 21, 2014, the President issued a memorandum for the heads of executive departments and agencies on the subject of modernizing and streamlining the U.S. immigrant and nonimmigrant visa system for the 21st century. The Memorandum directs the Secretaries of State and Homeland Security, in consultation with various other Cabinet secretaries and the White House, to make recommendations to streamline and improve the Nation's legal immigration system. Such efforts should focus on reducing Government costs, improving services for applicants, reducing burdens on employers, and combatting waste, fraud, and abuse in the system, while safeguarding the interests of American workers. This notice solicits public input to inform the development of those recommendations.

    Table of Contents Back to Top

    DATES:
    ADDRESSES:
    FOR FURTHER INFORMATION CONTACT:
    SUPPLEMENTARY INFORMATION:
    I. Streamlining the Legal Immigration System
    II. Ensuring Use of All Immigrant Visa Numbers
    III. Modernizing IT Infrastructure
    DATES:
    Responses must be received by January 29, 2015 to be considered.

    ADDRESSES
    You may submit comments by any of the following methods:

    Email: USCISFRComment@uscis.dhs.gov. Include Visa Modernization in the subject line of the message.

    Online: You may access the Federal Register Notice and submit comments via the Federal eRulemaking Portal Web site by visiting www.regulations.gov. In the search box either copy and paste, or type in, the e-Docket ID number USCIS-2014-0014. Click on the link titled Open Docket Folder for the appropriate Notice and supporting documents, and click the Comment Now tab to submit a comment;

    Mail: Attn: Laura Dawkins, Chief of the Regulatory Coordination Division, USCIS Office of Policy and Strategy, 20 Massachusetts Avenue NW., Washington, DC 20529-2140.

    Instructions: Response to this RFI is voluntary. Responses exceeding 30 pages will not be considered. Respondents need not reply to all questions listed below; however, respondents should clearly indicate the number of each question to which they are responding. The Department of Homeland Security and the Department of State request that no business proprietary information, copyrighted information, or personally identifiable information be submitted in response to this RFI. Please note that the U.S. Government will not pay for response preparation, or for the use of any information contained in the response.

    The full text of the November 21 Memorandum is available at: http://www.whitehouse.gov/the-press...ernizing-and-streamlining-us-immigrant-visa-s.

    The White House Fact Sheet describing the President's Immigration Accountability Executive Actions of November 20 is available at: http://www.whitehouse.gov/the-press...t-immigration-accountability-executive-action.

    Note that the November 21 Presidential Memorandum, and this RFI, are not focused on potential Federal Government actions that were announced as part of the President's Immigration Accountability Executive Actions of November 20. Rather, this RFI seeks recommendations on improving and modernizing the legal immigration system in other ways. Federal agencies responsible for implementing the previously announced executive actions are establishing stakeholder engagement plans separate from this RFI. Do not submit responses detailing recommendations directly related to the actions announced on November 20, as separate processes exist to engage regarding those actions where necessary. For more information, see:
    http://www.dhs.gov/immigration-action
    http://www.uscis.gov/immigrationaction
    http://www.dol.gov/dol/fact-sheet/immigration/perm.htm.

    FOR FURTHER INFORMATION CONTACT:

    Laura Dawkins, Chief of the Regulatory Coordination Division, USCIS Office of Policy and Strategy, 20 Massachusetts Avenue NW., Washington, DC 20529-2140; Telephone number 202-272-8377.

    SUPPLEMENTARY INFORMATION:

    On November 21, 2014, President Obama issued a Presidential Memorandum directing the Secretaries of State and Homeland Security to lead an interagency effort, in consultation with private and nonfederal public stakeholders, to develop within 120 days recommendations on streamlining and reforming the Nation's legal immigration system, while safeguarding the interests of American workers, including recommendations to:

    (i) Streamline and improve the legal immigration system—including immigrant and nonimmigrant visa processing—with a focus on reforms that reduce Government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system;

    (ii) ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that Congress provides for and intends to be issued, consistent with demand; and

    (iii) modernize the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.​

    The Memorandum further directs the Secretaries of State and Homeland Security to establish metrics for measuring progress in implementing these recommendations and in achieving service-level improvements, taking into account the Federal Government's responsibility to protect the integrity of U.S. borders and promote economic opportunity for all workers.

    Along with general comments and suggestions, the Departments of State and Homeland Security are also specifically seeking input on the following questions. To the extent possible and wherever appropriate, responses to this RFI should indicate the question number(s) and include, for each recommended action, (a) clear prioritization of which actions are most important and consequential; (b) estimates of the number of individuals affected, time saved, private and public costs saved, general economic benefit, or other impact metrics as appropriate; (c) legal authorities under existing statutes and case law; and (d) suggested government performance metrics as described above. Concrete recommendations are more useful than general observations. Such proposals need not be limited to the activities of the Department of State and the Department of Homeland Security, as the Memorandum also contemplates roles for the Departments of Agriculture, Commerce, Justice, Labor, and Education, and other departments and agencies as relevant. Note that responses should not include the modernization of the PERM labor certification program, as the Department of Labor has provided for a separate process to engage stakeholders on modernized recruitment and application requirements in this program, which applies to permanent workers; for more details, see: http://www.dol.gov/dol/fact-sheet/immigration/perm.htm.

    I. Streamlining the Legal Immigration System

    1. What are the most important policy and operational changes that would streamline and improve the processing of immigrant visas at U.S. Embassies and Consulates, for both family-sponsored and employment-based immigrant visas?

    2. What are the most important policy and operational changes that would streamline and improve the processing of nonimmigrant visas at U.S. Embassies and Consulates, including visitor, student, temporary worker and other nonimmigrant visas?

    3. What are the most important policy and operational changes that would streamline and improve U.S. Citizenship and Immigration Services (USCIS) processing of the following types of immigrant and nonimmigrant visa petitions?

    a. Family-sponsored immigrant visa petitions

    b. Employment-based immigrant visa petitions

    c. Nonimmigrant petitions

    d. Humanitarian petitions and applications (such as U nonimmigrant status petitions, T nonimmigrant status applications, and VAWA self-petitions)

    e. H-1B temporary worker visa petitions, specifically, ways to reduce burdens on employers and workers engaging in the H-1B petition process, consistent with protections for U.S. and temporary foreign workers. (Note that employment authorization for certain H-4 dependent spouses of H-1 B nonimmigrants was a part of the President's November 20 announcement described above, and recommendations regarding that topic should not be submitted here.)​

    4. What are the most important policy and operational changes that would streamline and improve the process of changing from one nonimmigrant status to another nonimmigrant status?

    5. What are the most important policy and operational changes that would streamline and improve the process of applying for adjustment of status to that of a lawful permanent resident while in the United States?

    6. What are the most important policy and operational changes that would streamline and improve the inspection of arriving immigrants and nonimmigrants at U.S. ports of entry?

    7. What are the most important policy and operational changes that would attract the world's most talented researchers to U.S. universities, national laboratories, and other research institutions? (Do not submit responses directly related to the actions announced on November 20, including the strengthening and extending of the Optional Practical Training program for foreign students. Separate processes exist to engage regarding those actions where necessary; see details above.)

    8. What are the most important policy and operational changes that would attract the world's most talented entrepreneurs who want to start and grow their business in the United States? (Do not submit responses directly related to the actions announced on November 20, including the “national interest waiver” and “significant public benefit” parole pathways for entrepreneurs. Separate processes exist to engage regarding those actions where necessary; see details above.)

    9. What are the policy or operational changes that could assist in creating additional immigration opportunities for high-demand professions, such as physicians?

    10. Focusing on the EB-5 immigrant investor visa, what policy or operational changes would (a) reduce existing burdens and uncertainties on the part of petitioners, Regional Centers, and other participants in the program; (b) ensure that this program is achieving the greatest impact in terms of U.S. job creation, economic growth, and investment in national priority projects that the capital markets would not otherwise competitively finance; and (c) enhance protections against fraud, abuse, and criminal misuse of the program by petitioners or Regional Centers?

    11. How can labor market related requirements for temporary workers be best tailored to meaningfully protect both U.S. and temporary foreign workers while achieving operational efficiency for both employers and relevant Federal agencies?

    12. How should relevant occupational categories, descriptors, and/or data, such as the Department of Labor's O*NET system (http://www.onetonline.org) be refined and updated to better align the prevailing wage determination process for visas with the evolving job market?

    13. Focusing on the diversity visa program, what are the most important policy and operational changes that would streamline and improve the diversity visa process, including enhancing protections against fraud?

    14. What other policy and operational changes would most effectively combat waste, fraud, and abuse in the legal immigration system?

    II. Ensuring Use of All Immigrant Visa Numbers

    15. What are the most important policy and operational changes, if any, available within the existing statutory framework to ensure that administrative policies, practices, and systems fully and fairly allocate all of the immigrant visa numbers that Congress provides for and intends to be issued each year going forward?

    16. What are the most important policy and operational changes, if any, available within the existing statutory framework to ensure that administrative policies, practices, and systems fully and fairly allocate all of the immigrant visa numbers that Congress provided for and intended to be issued, but were not issued in past years?

    III. Modernizing IT Infrastructure

    17. From the perspective of petitioners and applicants, which elements of the current legal immigration system (both immigrant and nonimmigrant systems) are most in need of modernized information technology (IT) solutions, and what changes would result in the most significant improvements to the user experience?

    18. Which existing government-collected data and metrics would be most valuable to make available to the public, consistent with privacy protections and national security, in order to improve oversight and understanding of the legal immigration system?

    Karin M. King,

    Acting Deputy Assistant Secretary for Visa Services, Department of State.

    Esther Olavarria,

    Senior Counselor to the Secretary, Department of Homeland Security.
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I've created this thread so that we can discuss how to respond to the administration's request for suggestions as to how to improve the immigration system. Please read the entire first post in this thread before posting any messages. I have highlighted in bold face particularly important provisions. Please pay attention to them.

    Thanks
     
  3. Kamakazee

    Kamakazee Super Moderator

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    Ron, for Question 2 - can we recommend stamping of approved I-797 petitions within the US at a local USCIS office? This will help the employee in not taking vacation to get visa stamped from home country and will particularly help the US business by not causing disruptions in work specially if the employee is handed a 221(g). If verification is required, it is much easier to do it when the employee and all documents are already in the US.

    Can we recommend this for Question 2?
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The USCIS does not have the legal authority to issue visas; only the State Department may do that. I'm thinking about suggesting that consular officers must issue an H visa unless there is an immediate reason why they shouldn't. Make provision for revocation later if a background check reveals new information that requires a denial.
     
  5. Jay P

    Jay P New Member

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    Ron,
    Out of these 16 questions I am needing to send comments on only half of it.
    Can I post comments for those 7 or 8 questions only?

    Please provide your feedback
    Thx
     
  6. montyp80

    montyp80 Junior Member

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    That's a great suggestion. Did you mean that while someone's visiting home country and they are in need of getting a visa stamp, they should be able to get it, no questions asked, as long as they have clear paperwork (approved extension of status)?

    We can also suggest to tie this with expansion of drop-box program.

    Based on my experience back in 2011, I had received my H1 extension (there were few RFE's and my employer provided all the request information) right before leaving for home country on vacation. My visa had expired and I had to go for visa stamping that's when I was handed 221g form requesting exact same information which my employer had submitted to USCIS while answering all the RFE's to acquire extension approval just a month before forcing me to stay back in home country for 3 months instead of 1 month originally plan. Isn't that redundant process and waste of resources/time for USCIS? Adding to that, absolutely agonizing wait time for genuine candidates who already has approved extension. I have heard people getting stuck for as long as 6 months!!!

    Currently they offer 'drop-box' feature for H1 candidates ONLY IF they have required paperwork and
    1. Beneficiary's visa stamp has expired within last 12 months
    2. Beneficiary is working with the same employer, printed on previous visa stamp

    We can suggest to expand this program to all the candidates who has been able to acquire extension of status while in US (based on approved I140 or just a regular extension). We can suggest to remove time and employer requirements.
     
  7. Jay P

    Jay P New Member

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    Sent my comments and received tracking number
    Can I track?
     
  8. sigler

    sigler Junior Member

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    I know the DV lottery is mandated by a law and that can only be changed by Congress; however, does the law specify who is be eligible to participate in the Lottery? What if they changed the rules so to be able to participate in the DV lottery, one must have either an EB or a FB application pending? Would that be at all possible?
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Yes. You may comment on one, all, or any number in between. You may also comment on things not included in these questions - provided the subject is not one of the other actions announced by the President.
     
  10. Jay P

    Jay P New Member

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    Awesome. Submitted my comments and received a tracking number for future references.
    Thanks Ron
    Jay
     
  11. Kamakazee

    Kamakazee Super Moderator

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    Ron, is 3b the question where we can ask for removal of dependents? I do not see any other question where we can suggest that.

    Question 16 - do we ask for recapture of previous unused visas? I thought it was not possible by policy making. But the question clearly states that. No harm in asking I guess.
     
  12. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You can comment on anything that you feel improves the system and hasn't been addressed by any of the other announced initiatives. You don't have to limit yourself to the specific questions asked. If you are going to suggest recapture of visas, however, you need to do more than just throw out that idea. You should provide an argument as to why it would be a good policy and provide a legal rationale for recapture.
     
  13. Kamakazee

    Kamakazee Super Moderator

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    Thanks Ron. I have provided all the legal rationale for removal of dependents but cannot find any for recapture of unused visas. Of the argument is simple that it will help ease the backlog if the unused visas are issued now but I am having trouble with the legal rationale. Do you have any document to back it up? I think you also have the same thought that recapture cannot be done.

    Also, regarding visa stamping - it looks like the same proposed rule has been released by DOS as well as USCIS. So, DOS has also asked for the same recommendations. Maybe because the President has asked all agencies to come together to prepare the report.

    http://www.regulations.gov/#!documentDetail;D=USCIS-2014-0014-0001

    http://www.regulations.gov/#!documentDetail;D=DOS_FRDOC_0001-3084

    If DOS has indeed asked for it and they have the legal authority to issue visas, I see no harm in asking for visa stamping within the US. Can I assume this?
     
  14. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I'm not going to argue in favor of visa recapture because I don't see any legal basis for it. Other people believe in this passionately and I don't want to water down their arguments by making a bad one.

    As for visa issuance in the U.S., there is a long history of visa RE-ISSUANCE for certain categories (E, H, L), but to my knowledge there has been no initial visa issuance in the U.S. in the past. I doubt that they would agree to this because they want a face to face meeting before issuing a visa. They also want to be able to do a local investigation of the applicant's background. You can always ask, but I see absolutely zero chance of this happening.
     
  15. Kamakazee

    Kamakazee Super Moderator

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    Ron, sorry I may not have been clear. I am talking about "RE-ISSUANCE" of visas specially the stamping of the visas when the applicant is already in the US on the same visa and is simply extending it specially the ones who have to do it every 3 years while awaiting to file for AOS.

    There is no point in asking the applicant to go back to home country simply to get a visa stamped when they already have an approved I-797 and then asked to wait while they do a local investigation. This hinders work for the US employer. The investigation is so much easier while the employee is still in the US.

    They can always have a face to face interview at a local USCIS/DOS office before stamping the visa.I am asking about visa RE-ISSUANCE and simply getting the stamping done inside US without having to go to home country. To my knowledge, this was done before 9/11. Isn't that possible to ask for it?

    Thanks.
     
  16. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Visa reissuance in the U.S. was included in S.744. The business lobby has been pushing hard for a resumption of this practice for years. I think that there is a good chance they will resume it.

    Keep in mind that USCIS has absolutely nothing to do with visa issuance or reissuance. They don't interview or do anything else, other that adjudicate and investigate petitions.
     
  17. Kamakazee

    Kamakazee Super Moderator

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  18. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Yes, this is an administrative rule and DoS can reinstate it whenever they wish.
     
  19. s_gan

    s_gan Super Moderator

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    If I remember correctly, this rule was scrapped after 9/11 terror attack
     
  20. Kamakazee

    Kamakazee Super Moderator

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    Yes, that's correct. Taking a quote from The Hangover - "Thanks Bin Laden."
     

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