RANDEL K. JOHNSON SENIOR VICE PRESIDENT LABOR, IMIIGRSTION, & EMPLOYEE BENEFITS CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA 1615 H STREET, NW. \VASHINGTON, D.C. 20062 AMY M. NICE EXECUTIVE DIRECTOR ISISLIGRATION POLICy U.S. Department oc Homeland Security Office of the General Counsel ATTN: DHS Retrospective Review 245 Murray Lane Mail Stop 0485 Washington, DC 20528-0485 Re: Department of Homeland Security regulatory review under E.O. 13563 76 Fed. Reg. 13526 (Mar. 14, 2011) Docket number DHS-201 1-00 15 Dear Sirs: We are writing in response to your Department s request for comment concerning the regulatory review being undertaken pursuant to President Obama s January 18, 2011 Executive Order 13563, Improving Regulation and Regulatory Review. The Chamber is the world s largest business federation, representing the interests of more than three million businesses and organizations of every size, sector, and region. Employers appreciate the opportunity to participate in the Department of Homeland Security s efforts to reassess its regulations by conducting a retrospective review of existing regulatory and reporting requirements. Employers of all sizes and industries are affected by Department of Homeland Security (DHS or the Department) regulations, including those governing Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS), the two agencies upon which our comment focuses. Executive Order 13563 and the Department of Homeland Security s Request E.O. 13563 expresses the President s views on how regulations should be promulgated and what procedures agencies should follow in seeking input and justifying their regulations. It builds on, and largely replicates E.O. 12866 issued by President Clinton. Section 6 of E.O. 13563 specifies that agencies are to consider how best to promote retrospective analys[es] of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned, and that within 120 days of January 18, 2011 agencies are to submit plans on how they will conduct these analyses.
Page 2 of 8 On March 14,2011, 60 days after issuance of the E.O., DHS published a notice in the Federal Register to initiate the retrospective reviews called for in the executive order, providing a month for interested parties to develop submissions. This compressed time frame has limited our ability to identify regulations that may deserve attention. Likewise, we wonder how the Department will be able to analyze public comments in the remaining 30 days before the 120 day deadline to submit an initial plan for regulatory review. The Chamber s submissions below highlight regulations which we suggest should be subject to retrospective analysis at ICE and USCIS. Immigration and Customs Enforcement DHS regulations at 8 CFR Part 274 should be reviewed. While there is general agreement that works ite enforcement is a key component of reforming our nation s immigration system, ICE has incomplete regulations governing worksite enforcement. Currently, all regulatory guidance concerning the employment verification process is found at 8 CFR Part 274. Below is a list of issues that either have no governing regulations or incomplete regulatory provisions, but nevertheless are of primary importance to employers as they attempt to comply with their employment verification obligations. One-Step Verification for E-Verify Employers. Completion of 1-9 forms in addition to the E-Verification process is duplicative and unnecessary and the cost of retention of Form I-9s for E Verified employees imposes an unnecessary economic burden. Reduction of the 1-9 paperwork burden would encourage voluntary employer registration for E-Verify, reduce cost, and promote efficiency. Thus, the 1-9 obligation should be integrated into E-Verify. Providing an electronic Form 1-9 with instructions, prompts, and drop down menus would provide a more efficient and effective means of completing the basic verification process and reduce or eliminate the risk of inadvertent paperwork violations. ICE Notice of Suspect Documents. This notice is issued during the inspection of I-9s by ICE auditors. It informs employers that certain workers may possess questionable work authorization documents. Currently, there is no specific timeline provided to employers in which to respond to the Notice by questioning employees and terminating their employment. Some auditors refuse to provide any time line guidance, some identify a few days while others provide several weeks. Employers should be given specific guidance and should be provided a standard period of 180 days. ICE Fine Settin2 Guidance memo (last modified July 13, 2009). This memo should be rescinded. New guidance in the form of regulations should be developed that place primary weight on the five statutory mitigating factors at 8 CFR 274. 10(b)(2).
Page 3 of 8 Recent decisions published by OCAHO have either disregarded the ICE Fine setting guidance or given it minimal weight. The factor of the employer s good faith should incorporate post audit activities such as enrollment in E-verify and the development of improved corporate immigration compliance policies and training efforts. Remote Hires. Currently employers must complete an 1-9 by conducting an in person review of the original of the documents to determine if they are genuine looking and appear to relate to the employee. Many employers hire staff remotely and find it difficult to delegate the task of 1-9 completion to a third party unrelated to the employer s business., We recommend that ICE provide guidance for completing an 1-9 for remote hires that incorporates increased technological capabilities, such as using video conferencing to view employees and their documents. Mergers and Acquisitions. In most mergers and acquisitions, human resource departments are overwhelmed in their efforts to comply with applicable laws and regulations and to timely complete I-9s for hundreds or thousands of employees based on an effective acquisition date. If an acquiring or surviving entity chooses to reduce its exposure by electing to complete new I-9s for all acquired employees, the company should not be required to complete I-9s for the transitioning workforce in just three days. The company s good faith efforts to complete the I-9s within a reasonable time from the effective date of the acquisition be treated as acceptable. Under 8 CFR 274a.2(b)(1)(viii)(A)(7), the receiving/surviving employer is allowed to claim that the employee continues employment for 1-9 purposes; but for the employer who does not trust old I-9s or applies stricter 1-9 standards, that employer is provided no additional time for new 1-9 completion. We request an agreement/mou among ICE, OSC, and USCIS to allow an exception from the normal 1-9 completion deadline for employers who choose to complete new I-9s in a merger, acquisition, or reorganization. If an employer documents its protocol for 1-9 completion as part of the merger, acquisition, or reorganization process and completes new I-9s in a 180 day time frame (like the 180-day window for a full workforce review in the FAR E-Verify context), we would encourage the application of prosecutorial discretion uniformly. Good Faith Recognition for E-Verify Users. Employers enrolled in E-Verify and using the system in good faith should be able to avail themselves of a specific exemption for technical violation fines and a reduction in fine percentage for substantive violations. The DOJ criminal prosecution guidelines for corporations should specifically consider use of E-Verify as a mitigating factor in penalties.
but U.S. Department of Homeland Security Page 4 of 8 US Citizenship and Immi,gration Services DHS regulations at Title 8 of the Code of Federal Regulations should be reviewed to identify those regulations that are completely outmoded by the passage of time or, with amendment, could provide profound improvement to our immigration system without waiting for legislative action. While most are in agreement that our immigration system needs reform, there appears to have been little effort by USCIS to identify what the agency can do, on its own, administratively, to generate improvements. Below is a list of issues where agency action can be taken that would reform the nation s immigration system. Adjustment of Status Applications. USCIS should amend its governing regulations identifying when Adjustment of Status applications can be filed to allow sponsored workers to file for Adjustment once an 1-140 Immigrant Visa Petition is approved, regardless of whether visa numbers are current and available. This administrative solution would allow USCIS to accurately report to the State Department concerning how many immigrants are documentarily eligible for permanent resident status at any given time. Moreover, with pending Adjustment requests no immigrant would obtain permanent resident status early or out of turn, or without all necessary security clearances, but the long waits for permanent resident status, often excess of five to seven years, would be ameliorated by the fact that high skilled immigrants could work and change jobs in the US labor market place, and freely travel. Travel for E, J, 0 while Adjustment of Status. This is one of those areas where the regulations are just an accident of history and the current rule is just plain dumb. Hs and Ls can travel once they file for permanent residency other workers cannot, meaning that if business or family travel needs arise the individual must have a 4 month window to wait for Advance Parole or his application for Adjustment of Status is deemed abandoned. Expand premium processing. Start with applications where adjudication is just a confirmation of status, and E-3s which aren t listed solely because didn t exist when premium processing first started. For example, expanding premium processing to 1-539 extensions or changes of status for spouses and minor children of nonimmigrant workers would not require significant resources at USCIS, but allow the agency to collect fees for cases that commonly languish. Similarly, EAD (Employment Authorization Document) and Advance Parole applications for pending permanent residents require only status verification (is the 1-485 still pending?) and would take minimal agency resources to adjudicate on an expedited basis, yet there would be significant public usage of premium processing for these applications. For the E-3 category, the same standard applies as the H-lB category, except that E-3s are for Australian professionals only. Since there is no premium processing for E-3 submissions, these individuals often have to travel home to Australia to obtain or extend status, which is extraordinarily costly and unnecessary.
USCIS and regular USCIS U.S. Department of Homeland Security Page 5 of 8 Work authorization for LIE spouses working incident to status. As the agency knows, a 2002 statute establishes that spouses of L and E visa holders shall be authorized to work incident to their dependent status. USCIS issues EAD cards with the regulatory reference to a section for working incident to status, but never promulgated a regulation establishing this and has no instruction in 1-9 guidance (M274) or any other policy memo establishing this. SSA issues SSNs based on 2006 confirmation with USd5, without the LIE spouse first obtaining an EAD but spouse must wait for 4 months to obtain EAD card and employer not authorized to complete 1-9 under current USCIS policy guidance. The failure to regulate although the provision was signed into law more than nine years is unconscionable, since spouses of L and E visa holders still remain unable to work incident to status as mandated by Congress. Extend practical training period for more F-i students graduating from US institutions. USCIS extended practical training (OPT, optional practical training, is granted after completion of degree) to foreign students completing STEM degrees as long as job requires STEM degree and employer is using EVerify. The Chamber would like to see the same 17 month extension (changed from 12 months to 29 months) for business analysis fields (operations research, management analysis, economics) especially where the student has both a STEM degree and a business degree but the last degree was not in a STEM field. Filing fees for 50/50 employers should not apply to intending immigrants. New filing fees for H and L nonimmigrants were instituted for companies relying on temporary foreign workers to staff U.S. operations (additional $2,000 fee for RiB - regular fee is already $2,325; additional $2,250 for L fee is $825). New fees were passed last August 2010 for employers with at least 50 employees in the US where at least 50% of US staff were in either H or L status. In calculating which employees are in H or L status for the 50% count, those being sponsored for permanent residency should not be part of the calculation. If employer is sponsoring staff for a permanent role in the US operations, the underlying purpose of the new fee doesn t apply. Reentry Permit Application Process. regulations governing Reentry Permit issuance mandate physical presence in the US when filing and at a separate biometric collection date, even though by definition the applicant has a temporary need to reside abroad (which means the applicant must travel back to the US). Given that these individuals are typically abroad all applicants requesting a Reentry Permit extension or second issuance are abroad should anange for biometric collection to be completed at the State Department s consular posts. This is a relatively small number of individuals and would not tax the consular posts resources. The current Reentry Permit process is costly and unnecessary.
Page 6 of 8 H1B Grace Period. USClSjegulations state that when an H1B leaves his employment (either by choice or when terminated) his status expires instantaneously. This makes no sense and since employers are responsible for return transportation costs it is expensive to suggest that when an employee is terminated you need to move him and his family abroad that night. USCIS and legacy INS have stated for more than a decade that the agency was considering establishing a grace period and the agency should take this opportunity to do so. E-filing. USCIS regulations allow e-filing for a few specific benefit requests but then all the supporting documents still have to be mailed in later. This process defeats the purpose of electronic filing and reduces impetus to e-file. USCIS has been working on this for years without any increased capacity for accepting required additional documents. USCIS should make public its rollout timetable for e-filing, ensure that the 1-765 and 1-90 applications can be filed electronically with all required documents, and focus on expanding e-filing including supporting documents for employer sponsored benefits. Spousal work authorization. USCIS should consider issuing work authorizations to nonimmigrant workers sponsored by employers, or at least allowing spouses of nonimmigrants who are in the process of being sponsored for permanent resident status to work once a priority date is established. This is a serious staff recruitment and retention issue when you are talking about folks who come here as students from China or India and then are being sponsored to stay here permanently because of their unique skill set but their spouses can t work until an immigrant visa number becomes available (which could be more than five to seven years after the employer establishes a priority date). Public Rulemaking on the Employer-Employee Definition. USCIS announced a departure from its regulatory definition of a qualifying employer-employee relationship through a policy memo, resulting in burdensome RFEs (Requests For Evidence) for employer filed visa petitions for workers. The RFEs require employers to expend inordinate resources to respond and in many cases lead to denial despite the fact that the employer and sponsored alien complies with the regulatory definition of employeremployee relationship. The RFEs permeate employment based adjudications, even though the policy memo was allegedly limited to the H- lb visa category. If USCIS wants to amend the employer-employee definition governing employer sponsored visa petitions, it should go through public rulemaking to do so. If the current regulatory standard remains valid, then USCIS should cease issuing such burdensome RFEs. The Chamber cannot support agency efforts to change the terms and conditions of its regulations through the issuance of field guidance, especially guidance in which the public has no meaningful participation. Public Rulemaking on L-1B Specialized Knowledge. A July 2008 non-precedent case started a trend of cumbersome RFEs (Requests For Evidence) and the January 2010
Page 7 of 8 Neufeld Memo on employer-employee relationship in 3 party placements for H-lB petitions has lead to similar analysis in L-1B petitions and employers have very high RFE and denial rates. USCIS is conducting a policy review but since it is implementing the review outside of public notice and comment it has the right to provide whatever timeline it wants for input from the employer community. For an issue as important as L- 1 B specialized knowledge definition we hope there will be at least a 30 day comment period and public rulemaking. Again, the Chamber cannot support agency efforts to change the terms and conditions of existing regulations through the issuance of field guidance, especially guidance in which the public has no meaningful participation. Public rulemaking on EB2 National Interest Waivers (NIW). A 1998 precedent case restricted the usefulness of NIW category created by IMMACT9O. It s time for the agency to reevaluate the N1W standard, in light of focus on keeping Ph.D. STEM graduates working on research and development in the U.S. VIBE. USCIS is running a pilot now with plans to permanently implement a program entitled Validation Instrument for Business Enterprises (VIBE), which will compare data filed by sponsoring employers on immigration forms with data maintained by Dun & Bradstreet. D&B is not used by small business and, moreover, is not updated in real time by registered employers with respect to mergers, acquisitions, layoffs, corporate reorganizations and the like. Presently, Fortune 500 companies receive Requests for Evidence generated by VIBE. The use of VIBE can cause unnecessary delays, without any corresponding fraud prevention benefit to USCIS. By way of example, a large percentage of the employers that utilize the H-lB program sponsor only one or two visa petitions each year and for these businesses to be subjected to a VIBE RFE is particularly frustrating. While it is understood that a small number of businesses are the primary H- lb users, these companies could be subject to other trusted employer type programs that would allow USCIS to gather information on them, without relying on D&B which is unproven for the purpose for which USCIS is relying on it. The VIBE initiative should not be rolled out for all employment based immigration sponsorship until USCIS changes the protocol the agency s examiners use in considering VIBE information. Translations. USCIS regulations require full translation of all foreign articles and trade publications for 0-1 and P-i athlete petitions, even where there is just one paragraph referring to the sponsored athlete. USCIS is implementing this regulation, which is costly and unnecessary. USCIS should withdraw or amend the regulation. Amend TN occupation list. USCIS should evaluate an update to the NAFTA occupations list, and initiate the process with Canada and Mexico to modernize the list. At a minimum, Management Analyst and Operations Research Analyst should be added to the list.
Page 8 of 8 Trusted employer concept. USCIS should establish a system where petitioners can register and provide some documentation common to their petitions and have a recognized relationship with the government. Thank you for your consideration of these comments. Please do not hesitate to contact us if the Chamber may be of further assistance in this matter. Sincerely, Randel K. Johnson Senior Vice President Labor, Immigration and Employee Benefits Amy M. Nice Executive Director Immigration Policy