Inconsistency, Burdensome Paperwork Plague Visa Processing

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Inconsistency, Burdensome Paperwork Plague Visa Processing

By Allen Smith 

Modernizing the nation’s legal immigration system is a top priority for President Barack Obama, who announced on Nov. 21, 2014, in a presidential memorandum that the secretaries of State and Homeland Security have 120 days to develop recommendations on streamlining the current system. As part of that effort, the Department of State (DOS) and Department of Homeland Security (DHS) sought input beginning on Dec. 30, 2014, on how to reform visa processing to both improve services for applicants and reduce burdens on employers.

More consistency and less paperwork are top concerns for employers, immigration attorneys say.

“Consistency is a very big issue currently. More so with consulates and embassies than with USCIS [U.S. Citizenship and Immigration Services],” Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla., told SHRM Online. “Each consulate or embassy has its own requirements and procedures for most types of visas. Sometimes, the difference in procedure is justified; for example, because of unique country conditions or issues relating to police certificates, medical exams, etc.

“Other times, it is unclear why the procedure is different and it makes more sense for it to be streamlined,” she added. “For example, E-2 visas for investors are handled very differently depending on the consulate or embassy where the individual applies. That is very burdensome and inefficient for applicants and their employers. It is difficult to keep up with each consulate’s procedure, especially since procedures change every [so] often. Even the most experienced lawyer must double-check the procedure for most types of visas at each consulate due to the lack of consistency.”

“Uniformity of requirements would be a great change,” agreed Mira Mdivani, an attorney in Overland Park, Kan. “Some consular officers list what they would like H-1B applicants to bring with them to interviews; some don’t. Some consular officers would review and consider documents brought by the applicants with them; some won’t. In a recent case, an engineer whose employer’s H-1B petition was recently approved tried to hand to the officer the very documents the officer was asking [to see], including a letter from his supervisor. The officer refused to look at the documents and requested that instead the applicant should file them online. Currently, it is not uncommon for a U.S. employer to be anxious as to whether the foreign worker will be able to return to continue his job in the U.S. or will be ‘stuck’ abroad because of lack of uniformity.”

Consistent adjudications by Homeland Security are needed too. “More consistent adjudications should lead to improved ability to anticipate results and evaluate eligibility, especially consistency between the two processing centers in California and Vermont, as well as between the regular processing and expedited processing units,” Borovska stated. “It is entirely possible to receive a quick approval without any requests in a case and a very extensive request for evidence in another case with almost identical facts.” She said this was because adjudicating officers have “a large amount of discretion.”

National Visa Center

Better communication between Homeland Security’s USCIS and the DOS “will also help to improve processing,” Borovska added. “Once an immigrant petition is approved by the USCIS, if the individual is outside the U.S., the petition is sent to the DOS for consular processing—first, to the National Visa Center (NVC) and then to the U.S. embassy. Often times we experience delays after the approval of an immigrant petition because USCIS and DOS cannot locate the approved petition and, in a way, blame each other for the lack of action on the approved petition.”

Lately there have also been “very significant backlogs” at the National Visa Center. “It takes up to a month to receive an acknowledgment of receipt of correspondence or documents sent to the NVC. It takes over 60 days for the NVC to review documentation/forms and provide feedback on anything else that is needed to complete the case,” Borovksa said. “This causes very significant delays for individuals currently abroad and awaiting … permanent residence. This can be a very significant problem if the priority date retrogresses because an applicant whose case was delayed by the NVC will lose the ability to obtain permanent residence until the priority date is once again current. It may also cause certain documents, such as the police certificate, to expire. The NVC recently increased the cost of immigrant visa applications and we are hopeful that processing times will improve.” 

Paperless Filing

Also on immigration attorneys’ wish list: electronic filing.

Kevin Lashus, an attorney with Jackson Lewis in Austin, Texas, said electronic filing would streamline USCIS processing of H-1B temporary visa petitions. “At present, employers must prepare hundreds (sometimes thousands) of paper applications—commonly generated from electronic knowledge management applications. The Immigration Service should move to a digital filing system—similar to what DOL [the Department of Labor] has done with the labor certification process.”

Mdivani said, “The government should make the employment eligibility verification forms process electronic, similar to E-Verify, and make it available to employers at no cost.”

“Several of the embassies and consulates have made great strides in employing software to streamline the processing of visas,” Lashus noted. “The consulate in Monterrey, Mexico, is a great example of an embassy evolving processes to take advantage of technology. Having said that, we don’t see it uniformly. There is still a lot of discretion at the various offices to do things differently. There’s obviously a cost associated with staying abreast of the nuances from consulate to consulate; so, implementing best practices across the platform would really improve visa processing and adjudication.”

Expanded OPT Program

The biggest problem for employers on the H-1B visa “is the dramatic shortage of visa numbers and the resulting inability of employers to be able to plan H-1B hiring effectively,” according to Marketa Lindt, an attorney with Sidley Austin in Chicago.

“So in terms of the provisions that can be addressed by regulation or guidance, given that the H-1B numbers cannot be changed by DHS, the highest priorities are measures that would allow employers and employees to best work around the limitations of the H-1B gap,” she said.

“For example, if an employee’s H-1B petition was submitted but not selected in that year’s H-1B lottery, extend the OPT [optional practical training] time frame for an additional year,” she suggested. “Similarly, it would be very helpful to expand the current STEM [science, technology, engineering and math] provisions for E-Verify employers, by expanding the list of degree programs that are eligible for the additional 17 months of OPT work authorization.”

Other Suggestions

These suggestions for improving the processing of immigrant visas are merely the tip of the iceberg.

Peter Asaad, an attorney in Washington, D.C., recommended a few additional changes:

  • Allow certain H-1B/H-4 candidates to get their visa renewal stamping done in local USCIS offices rather than dealing with the travel and uncertainty abroad, which impacts both the employee and the employer when there are delays.
  • Capture all unused immigrant visas to benefit backlogged employment-based categories.
  • Provide an H-1B grace period to find another job in the same way an F-1 gets a 60-day grace period.

Comments on the DHS request for information are due Jan. 29, 2015.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.