Those of us who want to retain immigration, but keep admissions down to a dull roar, see lots of bad news, but here are four bits of good news. In each of four different migration programs, the open-borders types have been thwarted, at least momentarily.
The four instances, moving from an individual case to that of a whole class, can be described as follows.
O Nonimmigrants. We don't write about this nonimmigrant (temporary) visa program very often because it is middle-sized, not very controversial, and little about it is made public.
Class O visas go to those who "possess extraordinary ability in the sciences, arts, education, business, or athletics, or who [have] a demonstrated record of achievement in the motion picture or television industry." There were 66,604 admissions in FY 2013 according to Table 25 of the Yearbook of Immigration Statistics for that year; this can be compared to some of the larger categories, such as the admission of close to 1.5 million F-1 students annually.
As the reader can imagine, the devil is in the definition — just who has "extraordinary" ability?
I was reminded of all of this when a stable, fighting the denial of an O petition for an "assistant horse trainer," lost at the Administrative Appeals Office level, and took the case into the federal court, which meant that the anonymous adjudicators in USCIS must have done the right thing. That's the good news.
The case is Mott Thoroughbred Stables of Palm City, FL, v. Rodriguez et al, and can be seen in the PACER files as case 1:15-cv-00333-RBW. USCIS had previously granted O visas to comparable workers the pleadings said; the agency claimed that it had done so in error and now was making the correct decision. A federal judge in the U.S. District of Columbia will decide the matter.
H-2A Nonimmigrant Workers. Still in the great outdoors, and still at the federal district court level, we have a case involving H-2A nonimmigrant workers. It deals with the other Washington, the state, and the name of one of the work places is Horse Heaven Hills Farm. As Dave Barry would say, "I am not making this up."
The issue in this case is that old, old problem of an agricultural employer ignoring resident workers because he prefers foreign ones. In this instance, Judge Stanley Bastian on April 8 certified a class of 44 U.S. workers, a class that may grow to 600. My lawyer step-daughter, who spends her life on class action cases (mostly disability and penal), tells me that a crucial event in a successful class action case comes when the judge certifies a class; the next part of the procedure is to establish the damages suffered by the workers. So, a little good news from the West Coast.
The case is Ruiz Torres et al v. Mercer Canyons, Inc., and it can be found in PACER, at 1:14-cv-SAB.
H-1B Nonimmigrant Visas. A larger decision was made, in effect, by two government agencies about the H-1B program for high-tech workers. First, AAO decided that if an employer, such as one of the Indian body shops, wanted to move a worker from one geographical location to another it needed to apply again, as wage levels vary from place to place. While H-1B fee schedules are complex, the new decision seems to require the payment of a $325 fee (at least) every time a worker is moved.
While an interim AAO decision applies only to the parties before it, in this case the government, following a review by a string of ranking DHS and DOJ officials, decided to make this a relatively rare precedent decision. This means that all DHS officials must take the ruling into account when handling similar cases.
According to industry analysts, this decision will cost the body shops both money and time, as they frequently move their workers from place to place. It will have a lesser impact on the big firms (Google, Microsoft, et al.) which do not transfer workers as often. From my point of view, any further complexities imposed on H-1B employers is a good thing, as they may discourage use of the program.
The precedent appeal can be seen here.
Immigrant Investor (EB-5) Visas. The most dramatic news in this set of four involves the slowdown of the issuance of visas to rich people from China who want to use the immigrant investor (EB-5) program. Most — something like 85 percent — of EB-5 investors are from China; they must be worried about their safety, and whether they move to the United States or not, they want the right to do so should such a haven be needed. These immigration visas, like most, have double limits on them; no more than 10,000 EB-5 visas a year and no more than 7 percent of all visas may go to people from a single nation.
Meanwhile, despite a flurry of scandals the Obama administration has been seeking (successfully) to expand the program. Suddenly success has run into the numerical limits that are part of most American immigration programs. The May Visa Bulletin declares that during that month, only EB-5 petitions dated May 1, 2013, or earlier will lead to visas. There was a one-month pause in the program earlier, but never has such an early date been proclaimed.
Just how the allocation of these numbers works once ceilings are reached is hard to describe, and the Visa Bulletin makes no effort to do so; factors considered include the ceilings mentioned, the number of approved petitions in line, and the State Department's estimation of the percentages of approved petitions that will be used. The key date often moves forward in time over the months, but it also can "retrogress" and move backward, as it now has with the EB-5 program.
These decisions about waiting times for approved immigrants seem to be mechanical, and not made by policymakers. Some dates for oversubscribed subsets of visas — such as for some Filipino family members — go back as far as 1991, as my colleague Jessica Vaughan reported recently.
In short, the EB-5 program will continue to produce visas for an earlier set of investors and their family members, but the uncertainty created by this development will hamper recruiting among the rich Chinese, and probably will cause the EB-5 middlemen to start pursuing wealthy aliens from other nations.
The downside of this development is that it will create more pressure from the open-borders types to water down the numerical limits in this category.
So, in at least four instances, immigration regulation is doing its job despite the best efforts of the administration to move in the other direction.