The Effrontery of USCIS: “Don’t File for H-1B Visas until We Say We’re Ready, No Matter What Congress Says.”
I thought I learned about how a bill becomes law in high school Civics. It all seemed simple and straightforward then. A bill is passed by both houses of Congress, the President signs it, and that’s the end of the story: The law is the law. U.S. Citizenship and Immigration Services – the unit within the Department of Homeland Security charged with implementing the new H-1B visa law – has added a new page, however, to the standard high school Civics text. A law apparently is not a law if the administrative agency assigned by Congress to implement it refuses to do so.
What’s this all about? It’s about the H-1B Visa Reform Act, Pub. L. No. 108-447, passed late last year to help American employers in the global race to secure the top talent for 21st Century jobs. Congress said in essence that it makes no sense investing in the graduate education of foreign nationals if they have no opportunity to work for U.S. employers after they receive their degrees.
Under the new H-1B law, which takes effect this week (there is some dispute as to whether the law’s effective date is March 8 or 9), foreign students who graduate with a Master’s or higher degree conferred by a United States college or university are entitled to apply through a petitioning employer for an additional 20,000 H-1B visas that are now made available for the current fiscal year. This additional visa allotment is especially important since the regular quota of 65,000 visas ran out in one day (October 1, 2004), and employers have been waiting since then for a fresh supply.
In anticipation of the new quota opening up early this week, U.S. employers have taken a number of preliminary steps at significant expense by:
• recruiting foreign graduates with U.S.-conferred Master’s and Ph.D. degrees, • hiring an immigration lawyer or firm to advise them on the complex procedures, • researching prevailing wages for the jobs these graduates would fill, • posting notices to their employees that one or more H-1B workers are to be hired, • obtaining a certified Labor Condition Applications from the U.S. Department of Labor, • preparing a Public Access File that allows anyone to confirm that all the labor-protection rules of the H-1B program have been satisfied, • completing a petition for nonimmigrant worker, • obtaining proof of the worker’s graduation with a Master’s or higher degree from a U.S. university or college, and • cutting checks for the filing fees which can cost up to $2,685 if you have more than 25 employees and need to hire the worker in a hurry.
Like a prudish host who takes the punch bowl away just as the party is becoming convivial, USCIS issued a press release on March 4 warning employers that the agency is not ready for prime time. http://uscis.gov/graphics/publicaffairs/newsrels/H1BVisaReformAct03_04_05.pdf. The press release, misleadingly entitled “USCIS to Implement H-1B Visa Reform Act of 2004,” is brimming with chutzpah. In it, the agency tells employers to FUGGEDABOUDIT and boldly announces:
“USCIS will reject any new H-1B petition that is filed in advance of the effective filing date as established in the forthcoming Federal Register notice.”
If we strip this sentence of its bureaucratese, here is what the agency is really saying: “Although we’ve known since December 9, 2004 that the new law would take effect in March, we waited 85 days, that is, until a half-week before Congress said the additional visas would be available, to tell American employers that we are refusing to do our job until we’re darn well ready, and when we are, we’ll let you know with a publication in the Federal Register.”
So the next time you review your child’s Civics homework, make sure that you correct any misunderstandings (based on an apparently simplistic reading of the Constitution) and say that a law is not a law until the bureaucrats in Washington say they are ready to follow it.
One last Civics question: “Where are the Congressional oversight committees when we need them?”