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The Importance of Adjudication Predictability: Impact on Employers, Individuals, and the Economy

Moderator: Frederick Troncone, Ombudsman’s Office 
Panelists: Amy Nice, U.S. Chamber of Commerce 
Linda Rahal, Trow and Rahal, P.C.
Lynn Shotwell, American Council on International Personnel (ACIP)

 

This roundtable shared differing perspectives on recent USCIS employment-based adjudications, focusing primarily on predictability and consistency.

Panelists focused on the need for USCIS to better understand current business practices. Employer relocation trends demonstrate how companies strive to fulfill business objectives and enhance career development with international assignments. Companies are now utilizing more employee transfers than ever. Ms. Shotwell explained that based upon increased issuance of Requests for Evidence (RFEs), there is a perception that the government may be struggling to keep up with current business practices. All panelists agreed that USCIS needs to better understand the business community, such as the use of "virtual offices," and ensure better consistency. Ms. Nice stated that companies are increasingly under pressure and fast-paced. As companies must pivot to account for change, they may chose leave the United States and go elsewhere due to the complexity of the immigration process.

Panelists expressed concerns with the lack of predictability in USCIS employment-based processing. They reported that attorneys and their clients often receive varying results for similar petitions or applications. For example, H1-B specialty occupation petitions submitted for the same project have yielded different RFE's. Ms. Rahall stated that USCIS appears to be more restrictive now than in years past. She explained that inconsistency gives the appearance of a "culture of no" surrounding USCIS employment-based adjudications. Ultimately, companies may turn elsewhere to conduct business, and the United States may lose out.

Panelists commented that accountability for business-related immigration is limited because the USCIS appeals process is not timely enough for companies. Ms. Rahal shared that employers will often re-file petitions, rather than submitting an appeal due to the lengthy processing times.

Proposed solutions to restore adjudication predictability included implementing a new initiative to address specific subject matters such as entrepreneurs, EB-5, L-1B, etc. Another suggestion was for USCIS to hold a summit of experts followed by technical training that implements recommendations from the summit. Panelists applauded the new Entrepreneurs in Residence Program, but were skeptical that it will have the needed impact.

The training of adjudicators was emphasized across the panel discussion. One key training area highlighted was the preponderance of the evidence standard. Panelists explained that even though the USCIS Adjudicator's Field Manual has remained the same, the adjudications standard appears to have changed. For instance, an Alabama logistics company wanted to bring in a manager but was denied because the manager was supervising contractors and not employees of the petitioning employer. This denial made it appear to the employer's attorney that USCIS does not consider supervising contractors as managerial, when another similar case was approved.

Conference attendees also had an opportunity to ask questions of the panelists, some of which are included below.

What are panelists' experiences with USCIS adjudicators reviewing proof of a beneficiary's qualifications?

Ms. Shotwell stated that there is a need for increased training for adjudicators. Recently, experts met with adjudicators to explain what goes on in research labs. It may be possible to replicate this process for other industries. Ms. Rahal explained that the adjudication process can be tough for applicants for employment-based first preference for individuals of extraordinary ability, and details must be explained thoroughly.

Mr. Troncone noted that increased specialization for adjudicators may be a solution, along with an emphasis on academic skills and following systemic trends of USCIS adjudications. Ms. Nice explained that specialization may be helpful and that she is hopeful USCIS will provide more training focused on specific categories.

An audience member shared that in the past, USCIS adjudicators responded well to training and good policy and noted that USCIS recently hired additional adjudicators who will receive this training. Another audience member commented that USCIS is working to ensure that their adjudicators receive the proper training to ultimately provide consistent decisions.

How can the Ombudsman's Office help USCIS better understand the present day business environment, as different from ten to twenty years ago?

The Ombudsman's Office continually liaises with USCIS regarding current business practices and developments. For example, the Ombudsman's Office recently hosted a listening session in Los Angeles, California and a public teleconference, both focused on small businesses concerns. The Ombudsman's Office will continue to provide a forum to improve communication with USCIS regarding these concerns.

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