United States visa law update

Obtaining a US visa, whether it is to work or invest in the US, or to accompany a US citizen family member, can often be a harrowing and frustrating process.

US visa and nationality law has over the years been created for many policy reasons, which early on seemed clear-cut, such as attracting workers to build a growing company or protecting our borders and American jobs. In recent years, American political parties have used immigration as a football to kick back and forth possibly to the detriment of the US economy.

In addition to the political issues, the bureaucracy involved with the visa application process seems to defy whatever good intentions America has to reunite US citizens with their families or to attract the richest, best and brightest to its shores. In the last few years, the US government has promoted different projects to ease this process, but in reality it can be a difficult and long process to navigate.

In February 2012, the US Citizenship and Immigration Services (USCIS) Entrepreneurs in Residence (EIR) programme was launched at the President’s Council on Jobs and Competitiveness at a national stakeholder summit in Silicon Valley.

According to the USCIS, one of the EIR’s goals was to optimise “existing visa categories used by entrepreneurs to provide pathways that are clear, consistent and aligned with business realities”. The EIR team was given just 90 days to focus on non-immigrant visa categories, which are the temporary visa categories that allow foreign nationals to work in the US.

EIR came up with three “signature deliverables” including:

  1. Producing public materials to help entrepreneurs to understand better the visa categories that are most appropriate for their activities in the US
  2. Equipping the USCIS’s workforce to better adjudicate cases in today’s rapidly evolving business environment and
  3. Streamlining USCIS’s policies and practices to reflect better the realities faced by foreign entrepreneurs and startup businesses.

Despite the best intentions of the Obama administration and EIR, it often appears that the different agencies involved with the issuance of visa petitions are actively working against getting those who are most qualified to improve the US economy and create more jobs in the process.

The bureaucracy involved with the visa application process seems to defy whatever good intentions America has

To foreign companies and the visa applicant, it may appear that there is one US government that is involved with the issuance of US visas when in fact, there are several agencies, primarily the US departments of Homeland Security, Labor and State involved. Each of the departments has, in lay terms, their own way of doing things.

While there is one Immigration & Nationality Act, there are separate agency field manuals setting out how US immigration law is interpreted. A consular officer at a US embassy or consulate follows the foreign affairs manual, while an immigration officer reviewing non-immigrant visa petitions will look to the adjudicator’s field manual on how to adjudicate a visa petition.

Each of these manuals has differences which, combined with a high level of discretion that each officer has in making a decision, frustratingly may result in varied decisions for cases involving very similar fact patterns.

As a lawyer practising US immigration law, I can say my clients have experienced first-hand the differing decisions for petitions filed for very similar employees and also the delays caused in family-based immigration due to the workings of the immigration process. Even if the petition is approved, there may be a refusal or delay of the issuance of the visa at the US embassy or consulate for a variety of reasons, including questions regarding admissibility relating to legitimate national security concerns.

The EIR programme makes clear the intention of these parts of the US government to promote immigrant entrepreneurs, but despite good intentions, the legislative branch cannot agree to pass comprehensive immigration reform. The US House of Representatives has not agreed a Senate Bill passed in 2013, which is of particular interest to Silicon Valley, increasing the number of H-1B specialty professional worker visas available.

Under current law, only 65,000 H-1B visas are available with an additional 20,000 available to those with a Master’s or higher degree earned from a US educational institution. The H-1B visa is the category used by employers to employ a foreign worker in a job that requires at least a Bachelor’s degree in a specialised field. Silicon Valley, in particular, has been advocating for an increase in the number of these visas which are oversubscribed annually.

America is one of the most innovative countries in the world when it comes to business, but with the complex workings of the US immigration bureaucracy and the refusal of the US legislative branch to make changes to the system, employers are forced to participate in a mad rush to obtain a US visa, and pay thousands of dollars in US government and legal fees to have the chance to get a visa for the brightest graduates in the world.

While the US legislative branch squabbles, the rest of the world is getting the benefit of the brightest minds in technology and business.

Janice A. Flynn is the principal lawyer with US Visa Solutions Ltd, a boutique US visa and nationality law firm based in central London. Email: janice@usvisasolutions.co.uk, www.usvisasolutions.co.uk; Twitter: @FlynnUSvisalaw