Leaked USCIS Memo Points Way To Fix Employment-Based Immigration

The Biden administration has the authority to extend employment authorization to all beneficiaries of approved employment-based immigrant visa petitions, a policy that would enhance the ability of the United States to retain talented individuals and improve the lives of many foreign-born scientists, engineers and physicians. A leaked memo produced (but not released) during the Obama administration reveals U.S. Citizenship and Immigration Services (USCIS) has concluded it has the authority to take this action. A Leaked Memo In 2015, immigration attorney Greg Siskind received a USCIS memo inside an envelope without a return address, he said in an interview. Siskind confirmed the memo’s authenticity through a USCIS official who had left the agency. (I also have confirmed the authenticity.) The memo points to actions the Biden administration could take to reach its objective of attracting and retaining highly educated foreign nationals. “The Biden-Harris Administration believes that one of America’s greatest strengths is our ability to attract global talent to strengthen our economy and technological competitiveness,” according to a 2022 White House statement. The Obama administration memo’s most significant part argues it is permissible to provide employment authorization to the beneficiaries of approved employment-based immigrant visa petitions. The memo states: “USCIS is now proposing to amend its regulations to extend employment authorization to the beneficiaries of approved employment-based immigrant visa petitions regardless of whether they have filed their applications for adjustment of status. This extension would be permissible given the Secretary of Homeland Security’s broad statutory latitude to determine which categories of aliens beyond those for whom employment authorization is mandated by statute, should be considered authorized for employment in the United States.” PROMOTED Today, individuals with approved immigrant petitions in the employment categories potentially must wait many years for an immigrant visa number to become available before being allowed to apply for “adjustment of status.” Only after applying for adjustment of status can a foreign national change jobs or start a business without the limitations inherent in H-1B temporary status. The USCIS memo pointed to another way. (Note: H-1B visa holders can change jobs but not as easily as others in the labor force.) A Strong Legal Case For The Authority Lynden Melmed, a partner with Berry Appleman & Leiden (BAL) and chief counsel of USCIS during the George W. Bush administration, agrees with the memo’s conclusion. “The statute does provide flexibility to the government, and U.S. Citizenship and Immigration Services could strengthen their legal position by promulgating a regulation,” he said in an interview. “That authority has been in place for decades and has been used by both political parties throughout the years.” MORE FOR YOU Meet The Unknown Immigrant Billionaire Betting Her Fortune To Take On Musk In Space Does The Southwest Snafu Suggest The Need For A Technology And Innovation Committee Of Directors On Boards? Pillar Two Of The Path To Inclusive Capitalism: Source Diverse Talent Melmed said, “That solution, like any band-aid policy fix, would put many foreign nationals in complicated legal situations. But that is the reality when Congress is unable to legislate effectively.” The memo cites judicial decisions and states, “As courts have explained, the Secretary’s authority in this area is ‘broad’ and largely ‘unfettered’ under the INA [Immigration and Nationality Act].” Siskind notes more recent court rulings have strengthened the Department of Homeland Security (DHS) secretary’s authority to issue employment authorization. USCIS never released the internal memo and, in 2016, the agency chose a narrower policy to address shortcomings in the employment-based immigration system. It came in response to a call for “Policies Supporting U.S. High-Skilled Businesses and Workers” in November 2014 from DHS Secretary Jeh Johnson. The USCIS memo’s conclusion may encourage the Biden administration to consider the key policy recommendation—extending employment authorization to all beneficiaries of approved employment-based immigrant visa petitions. Congress has failed to pass reforms to eliminate the per-country limit or increase the number of employment-based green cards. (A per-country limit bill did not receive a House floor vote in December 2022.) As a result, many high-skilled foreign nationals from India will be forced to wait decades to obtain employment-based green cards, leaving them in situations that range from difficult to untenable. Potential immigrants from China are also affected. The long wait for employment-based green cards makes it less likely that high-skilled foreign nationals will choose America for their careers, which can be seen in international student data. At U.S. universities, Indian graduate students in science and engineering declined by nearly 40%, between 2016 and 2019, according to a National Foundation for American Policy (NFAP) analysis. “During the same period (2016 to 2019), Indian students attending Canadian colleges and universities increased by 182%. The difference in enrollment trends is largely a result of it being much easier for Indian students to work after graduation and become permanent residents in Canada compared to the United States.” Chinese student interest in attending U.S. universities has also declined. Many Benefits To A New Policy Greg Siskind sees several benefits in extending employment authorization to all beneficiaries of approved employment-based immigrant visa petitions. First, if foreign nationals have an employment authorization document (EAD), they would have all the advantages of portability. Most would stay with their employers, where it would become easier to be promoted. (In the future, it could help those who face an unexpected layoff through no fault of their own.) It would offer some the opportunity to find another job or start a business. Jyoti Bansal waited seven years in H-1B status. He was able to file and receive an employment authorization document, which allowed him to start AppDynamics. That company grew to employ over 2,000 people and was valued at $3.7 billion when Cisco acquired it in 2017. Since then, Bansal has gone on to create another billion-dollar company. Second, the policy change would relieve USCIS, employers and foreign nationals of continual extensions of H-1B status for individuals waiting years for their employment-based green cards. Third, it would help U.S. employers and the American economy retain and attract foreign-born scientists, engineers, physicians and others. Fourth, Siskind argues the policy would be good for U.S. workers because it would give foreign nationals greater bargaining power, helping to relieve concerns about exploitation. Congress has already passed measures to provide greater portability for H-1B visa holders and make it easier for individuals who have applied for green cards to change employers. The memo is in the same spirit. “Congress has always thought portability was a good policy idea,” said Greg Siskind. “USCIS can simply extend that concept to a broader population and help America retain highly talented people in the process.” For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.