Administration Caves to Open-Borders Advocates on Investor Visas

By David North, August 2, 2011

The only thing that irks the administration more than one underused immigration program is having two such programs.

So today the Obama administration took several steps to still further ease the rules in the H-1B program for high-tech nonimmigrant workers, and the EB-5 program for alien investors, as the Wall Street Journal reported under this headline: "U.S. to Assist Immigrant Job Creators".

USCIS Director Alejandro Mayorkas declared, "In this economy, it certainly is in the interest of this nation to welcome foreign talent." The DHS press release can be found here.

What he did not say was that despite vigorous earlier efforts on the part of the administration, the flow of "foreign talent" has dropped to recent new lows as alien tech workers, their potential employers, and alien investors have all shown minimal enthusiasm for the programs in question. For some analysis of the agency's earlier efforts to expand the EB-5 program for immigrant investors see this blog.

David North Explains
the EB-5 Visa Program:
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"EB-5" means "employment-based, fifth priority" and the category allows anyone with half a million to spare to live in the U.S. permanently despite the lack of any other qualifications.

Regarding the levels of interest, note this: while there is a congressionally mandated ceiling of 5,000 investor visas (which can cover the investor, the investor's spouse, and their children), there were only 2,480 admissions in FY 2010.

Similarly, for H-1B nonimmigrant high-tech workers there are 85,000 numerically limited slots each year, plus some others outside the ceiling, but only 34,900 applications had been received from April 1 through July 22 of this year, as the agency reported recently. In some years, all the slots are all gobbled up on the first day of eligibility.

So what is the administration doing besides creating stories for the WSJ? Though all the details are not available at this writing, these seem to be the main changes:

  • some alien entrepreneurs, even without an employer, will be able to secure needed-worker green cards in the EB-2 category, which is new;
  • also new, a "sole entrepreneur can qualify for an H-1B"; in other words the 100 percent owner of a startup firm can apply for his own admission; this is the "I-am-my-own-grandpa" maneuver that is now, understandably, banned; H-1Bs currently have to be employed by an existing company;
  • more adjudicators will be hired to speed up the process; and
  • a new review panel will look at denials of applications and even decisions by the staff that more information is needed in the case of incomplete applications.

The last wrinkle may be just interesting, or possibly, diabolical.

Would-be investors, and their paid agents, and their lawyers, and the USCIS-approved investment vehicles wanting the investment funds, complain that USCIS staff asks too many questions and set standards too high in this program according to this recent blog by an EB-5 lawyer.

These middlemen may have an ally in a newly created "expert panel" which apparently will have the power to intervene in the staff's data-gathering process. Suppose you are an adjudicator and the application before you has several holes in it; you might not have the authority any more to send an inquiry to the applicant asking him to provide the missing information; instead, you might have to go to a panel of outsiders to get permission to ask the questions.

The USCIS adjudicators are, appropriately, going to dislike that notion.

That panel, according to the WSJ, will look at denied applications as well; up to now, appeals from staff denials, like appeals from many other kinds of petition denials, go to a long-established group, the Office of Administrative Appeals (OAA). Will that entity be displaced by the new "expert panel"? I would not be surprised. My sense is that the anonymous decision-makers within OAA, largely drawn from the ranks of INS and USCIS adjudicators, often support the negative decisions made earlier by the staff – to the irritation of the front office.

In totality, these modifications are minor ones and will probably have little numerical impact on the programs, but they did create a PR opportunity for the administration.

Further, these totally administrative efforts to expand migration may, sadly, foreshadow similar and larger efforts to open the doors wider without having to involve Congress in the decision-making.