A Potential Missed Opportunity To Improve Immigration Processing

U.S. Citizenship and Immigration Services operated a pilot program aimed at reducing paperwork for employers. However, there are questions about whether the agency gave the pilot a chance to succeed. Sam Peak, senior immigration policy analyst at the Americans for Prosperity Foundation, coauthored a report on the Trusted Filer program. I interviewed Peak, who responded in writing, to understand if there is still an opportunity for USCIS to improve processing for employers by using the program. Stuart Anderson: What was the Trusted Filer program? Sam Peak: The Trusted Filer program was a concept devised in 2015 that would enable U.S. businesses enrolled in E-Verify to pre-determine their eligibility for certain employment-based visa petitions to U.S. Citizenship and Immigration Services. The program’s key objectives were to reduce the amount of paperwork filed by employers, create a faster and more consistent adjudication process and promote greater coordination between USCIS, the State Department and U.S. Customs and Border Protection. Anderson: What happened to the Trusted Filer program during its implementation? Peak: The Trusted Filer program officially launched as a pilot dubbed “The Known Employer pilot program” in 2016. At the start of the pilot’s launch, USCIS stated that it would “publicly announce the results” of the program upon its conclusion. But towards the end of 2020, USCIS terminated the pilot without explanation and disclosed no information regarding the program’s results. In March 2022, our director of investigations, Kevin Schmidt, filed a Freedom of Information Act (FOIA) request to USCIS so we could uncover what happened to the program. Kevin and I found that USCIS took as much as six months to determine whether an employer was eligible for the pilot’s pre-certifications. Yet USCIS also claimed that adjudicators were already so familiar with the pilot’s participants that the program’s pre-certifications added little expedience to getting petitions approved. This begs the question—if USCIS was so familiar with these employers that the normal adjudication process went nearly as quickly as the pre-certifications, why spend 6 months determining an employer’s eligibility to participate in the pilot? Despite this glaring inconsistency, USCIS still released a document last year justifying the program’s termination because the lengthy vetting process “translated into an overall increase in agency costs.” We believe that these costs could have been avoided. Anderson: Do you think the program had a large enough sample size to make firm conclusions? Peak: Absolutely not. The intended sample size of the program was only nine employers—only five of which remained active throughout the pilot’s duration. According to USCIS’s report, the pilot’s most active participants were the Church of Jesus Christ-latter Day Saints, which filed nearly one thousand nonimmigrant [temporary] visa petitions, and General Motors Company, which filed 168 green card sponsorship petitions. According to the employer feedback documents we obtained from USCIS, Schaeffler Group also filed over 90 petitions, with most of them being for green card sponsorships and a couple for intracompany transfers. The same documents also show that Ernst & Young filed at least six intracompany transfer petitions, and Citibank filed roughly 22 unspecified petitions. Despite the program’s unworkably small sample size, however, the anecdotes from participating employers still provide us with some useful insights regarding the benefits of a Trusted Filer program. We know, for example, that all six of the employers who submitted feedback believed that USCIS should make the Trusted Filer program permanent. We also have quotes from participating employers stating that the pilot was “one of the best things USCIS has done” and that it “streamlined their process.” Anderson: How would a Trusted Filer program have helped smaller employers? Peak: USCIS’s failure to include smaller firms in the pilot program was a missed opportunity, given the extra scrutiny they are subjected to. Unlike larger firms, smaller businesses with a track record of petition approvals are constantly required to provide vast amounts of evidence to re-establish the legitimacy of their enterprise. Many startups have yet to develop a sophisticated operating structure and are frequently scrutinized for listing apartments or virtual offices as worksite locations. Pre-certifications would enable such businesses to continue filing visa petitions without USCIS wasting time and resources asking that smaller firms re-verify their legitimacy. Small and medium-sized businesses also face greater burdens when it comes to proving that they have the ability to pay the sponsored worker the salary promised in the contract. While large companies with over 100 employees can submit a short letter from their Chief Financial Officer to establish this information, other firms are required to keep resubmitting tax returns, invoices, bank statements and other documents that demonstrate their ability to pay the “proffered wage.” Business immigration lawyers have told us that allowing smaller entities to pre-certify this aspect of the process can reduce stacks of paperwork from 250 pages to “only” 50 pages. Anderson: What were some promising features of the Trusted Filer program that were never explored? Peak: The Trusted Filer program was intended to allow employers to pre-certify their eligibility for H-1B cap exemptions by proving their affiliation with an institution of higher education. Although USCIS failed to recruit employers that would utilize such pre-certifications to participate in the pilot, this feature would help many hospitals struggling with recent RFEs due to USCIS adjudicators changing the types of evidence it recognizes (i.e., hospital websites that highlight their programmatic arrangements with universities are now merely considered promotional materials and are less likely to be accepted as evidence). This apparent shift within USCIS poses particular problems for hospital staffing companies seeking petitions for employees to work at a university-affiliated hospital. As the petitioners, these staffing companies are now tasked with retrieving private documents from the hospital that proves to USCIS that the affiliation requirement is met. Hospital legal counsels often resist disclosing such details to third parties, creating major headaches for these staffing firms. Allowing worksites to pre-certify their university affiliation would mitigate these complications. Anderson: Are there additional visa categories or types of employers you would want a resurrected Trusted Filer program to include? Peak: A Trusted filer program should also allow businesses to pre-certify that their seasonal employees meet the visa requirements of working on a temporary basis. H-2B employers, for example, frequently waste time, money and paper demonstrating to USCIS that their need for additional workers is only for the season—despite already establishing this fact the year before. Given that USCIS approves nearly 100 percent of H-2B employers for meeting this requirement, allowing such businesses to pre-certify themselves would be a clear time saver. USCIS should also allow foreign entrepreneurs to pre-certify the investments awarded to their businesses. USCIS routinely asks foreign startup owners to provide documents disclosing the investment histories of their funders, verification that their investments were signed and made and explanations specifying why each investor chose to invest in that particular venture. Such pre-certifications would make the immigration system less cumbersome for foreign entrepreneurs to navigate. Anderson: What other recommendations do you have for USCIS on filing to improve processing for individuals and employers? Peak: USCIS should create a process where employers can pre-certify that the job position they’re petitioning for meets the requirements for the visa category in question. While USCIS grants large companies much leeway in proving this, the agency extensively probes small and mid-sized businesses with questions concerning these requirements, forcing them to re-submit evidence such as performance reviews, duties charts, and other documents relevant to the job. Employers sponsoring workers for L-1A visas for executives and managers, for instance, need to keep proving that at least half of the job’s functions are executive in nature and that the visa holder “has the authority to hire and fire” employees or recommend “personnel actions.” Moreover, businesses petitioning for H-1B visas frequently need to submit detailed explanations to USCIS demonstrating that the position in question is so complex that only an individual with at least a bachelor’s degree in the relevant field can execute the responsibilities of the job. Allowing smaller firms to pre-certify that their job openings are aligned with the visa category requirements would be an important reform. MORE FOR YOU The Inside Story Of Papa John's Toxic Culture Leopold Museum Exhibit Responds To Climate Change Protests AI At An Inflection Point Drives Storage And Memory Demand Immigrants and workers on temporary visas add a great deal to our economy. Improving the immigration process for employers, both large and small, would make the U.S. economy more competitive and better the lives of Americans. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.