Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

At least when it comes to India, Yogi Berra had it wrong. It's not déjà vu all over again. 

Blogging this weekend from my hotel room in Mumbai, I vividly recall my first trip to India in 1993. Invited as part of an American Bar Association delegation, I spoke in New Delhi on “Nonimmigrant Visa Options for Computer Software Professionals.”

My talk took place at LEXPO ‘93, a gathering of about 800 business leaders, accountants and lawyers sponsored by the U.S. Department of Commerce and the U.S. Embassy. Audience members sat in rapt attention as tax and corporate attorneys explained the legalities of doing business in America and I outlined an array of temporary work visa categories readily available to Indians in the new field of computer software.  The World Wide Web had been conceived a scant three years earlier -- the same year Congress enacted and the first President Bush signed the Immigration Act of 1990 (IMMACT) in order to "open the 'front door' to increased legal immigration."  Given the liberalization of the closed Indian economy that began in 1991, Lexpo '93 attendees seemed giddy about the prospects for U.S.-India business collaborations and binational entrepreneurial adventures. 

In 1993, Indian managers, executives and employees with specialized knowledge could easily come to the U.S. as L-1 intracompany transferees. Likewise that year, university-educated entrepreneurs from the world's largest democracy could incorporate a U.S. entity and arrange for the startup to petition the Immigration and Naturalization Service (INS) to grant an H-1B visa petition.  Since IMMACT eliminated the previously daunting requirement of proving that L-1 and H-1B visa applicants maintained an unrelinquished permanent residence in India to which they would return, U.S. consular posts in India readily issued these two categories of visas to Indian applicants.

Although the intent-to-return-to-India requirement made the prospect of receiving a B-1 business visitor visa somewhat uncertain, business visas were still "doable" in 1993 for qualified applicants.  More difficult yet likewise quite attainable was the B-1 in lieu of H-1B (BILOH) business visitor subcategory for temporary professionals, established in a 1982 INS ruling involving an Indian citizen, one Mr. Srinivasan. 

Oh how the odds of Indians receiving U.S. business-based visas have worsened in 18 years.  Last week, in Bangalore, I again addressed an audience of Indian executives and entrepreneurs who this time were far more glum than giddy. The title of my presentation ("U.S. & Global Enforcement of Immigration and Employment Laws - Best Practices for Indian Companies") and accompanying slides show that America's immigration agencies have moved from enabling enterprises to opposing entrepreneurship and empowering enforcers. 

Panel after panel of speakers (all with many years of experience submitting approvable and ultimately approved cases for reputable companies) described how the visa doors have slammed almost completely shut for most Indian firms, entrepreneurs and employees who want to grow businesses or create or fill jobs in the United States: 

• They described perfunctory 90-second applicant interviews at U.S. consular posts followed by peremptory visa refusals.  (This is likely, in part, a staffing and resource issue attributable to the State Department and Congress.)
• They asked why the standards for B-1, L-1 and H-1B visa eligibility had become so much more restrictive than in years past. 
• They pleaded for more transparency and less subjectivity from U.S. Citizenship and Immigration Services (USCIS) and the State Department when articulating the legal and factual criteria for visa issuance. 
• They wanted to know why U.S. consuls discounted as just so run-of-the-mill the extraordinary creativity and innovation of their IT professionals and businesses, even though the same talents are in high demand from American corporate customers. 
• They asked why the consular attitude at the interview had changed from 1993 (old vibe: "show me why you are eligible") to 2011 (new vibe: "defend yourself against my all but certain refusal of your visa").
• They perceived a consular strategy of denying L-1 visas (especially of the blanket variety) and pushing applicants to apply for H-1Bs even though the quota for that category will soon be depleted, leaving Indians to wonder which fortunate few can clear U.S. ports of entry in BILOH status given that U.S. Customs and Border Protection (CBP) officials often believe that the BILOH is a dead letter. (Channeling visa applicants to the H-1B and away from their preferred L-1 contravenes State’s Foreign Affairs Manual [9 FAM 41.11 N3.2, "Choice When More Than One Classification Possible"]).
• They wondered why business and work visa refusal rates are so much higher for Indian applicants than for the Chinese, Japanese, Europeans and South Americans.
• They asked aloud what message the U.S. government is sending to India when entry to America is so often barred.

Indian angst over discriminatory U.S. immigration policies is neither apocryphal nor paranoid. As Stuart Anderson of the National Foundation for American Policy recently reported.  Citing State Department data, his research reveals that "[t]he number of L-1 visas issued at U.S. posts in India declined by 28 percent from 2010 to 2011 while L-1s "issued in the rest of the world rose by 15 percent." I share the inference that Mr. Anderson, former INS Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner, drew from this wide divergence in L-1 approval rates:

This shows an enormous gap in visas issued as well as, it must be assumed, approval/denial rates between posts in India and the rest of the world, raising policy questions as to whether this great disparity is the result of a conscious policy at U.S. posts in India. This confirms what many observers have believed: an increase in denials over the past 12 to 18 months is making it far more difficult for employers to transfer employees based in India into the United States on L-1 visas. Employers say this is having a negative impact on growth, projects, and product development in the United States.

My colleague, Greg Siskind, recharactizes more bluntly Mr. Anderson's genteel questioning of the federal government's anti-Indian visa policy:

India has one of the hottest economies on the planet and we are slamming the door on entrepreneurs from those countries expanding operations in the US which very often result in hiring of US employees. Exactly the wrong policy for our times.

No kidding that India's economy is sizzling, as the U.S. Commerce Department reports in its 2011 Country Commercial Guide for India:

India is a story of growth and opportunity. India’s sustained growth of around 8.0% in 2009-10 and growing dynamism in several of its regional markets have created wide and diverse business prospects for U.S. exporters and investors. With 2011 growth estimates hovering at around 8.6%, India remains one of the fastest growing, dynamic economies in the world. . . . U.S. multinationals are sold on India and are expanding and deepening their market penetration. . . .

Economic growth in India today is being rewritten by India’s highly entrepreneurial and rapidly globalizing private sector. Indian firms are investing in infrastructure projects, growing their advanced manufacturing capabilities, and investing in new volume-based business models that tap into rising incomes and consumption in towns and rural economies across the country. . . . Indian firms are bullish about their economy and are eager for U.S. commercial and joint venture partnerships, technologies, brands, services, and know-how. . . . In 2010, U.S. exports to India amounted to $19.2 billion.

The State Department, although in cahoots with USCIS and CBP in their sub rosa efforts to deny visas or entry to Indian entrepreneurs and employees, surprisingly agrees with Commerce's assessment, as shown in the "Read Out on Secretary of State's [July 2011] trip to India":

On . . . trade and investment, both [governments] remarked on the real dynamism now in our trade and investment partnership. It was remarked that trade has gone up by 30 percent just this year alone, and investment also is growing very rapidly. In terms of the deliverables, I think you know we announced that we’ve agreed to resume technical discussions on a bilateral investment treaty [BIT] in August. And again, I think that’s important because there’s increasing flows of investments not only by the United States into India, but also by Indian companies into the United States [bolding added].

The technical discussions on a new U.S.-India BIT, which presumably would include the standard Treaty Investor [E-2] visa provision, apparently did not commence in August.  As Secretary Clinton noted in her October 14 speech on "Economic Statecraft" to the Economic Club of New York reported:

The State Department and the U.S. Trade Representatives Office will also lead negotiations on next-generation of bilateral investment treaties, the so-called BITs that protect and encourage investment. And I am pleased to announce we will soon resume technical level discussions on a new BIT with India [bolding added].

While technical talks have yet to start, U.S. immigration impositions on Indians persist. The latest burden imposed by State on Indian companies is the closure of four U.S. consular posts (New Delhi, Hyderabad, Kolkata and Mumbai) to blanket L-1 visa applicants and the insistence that all such applicants apply only at the consulate in Chennai.  India is a large country, covering some 1.27 million sq. mi., roughly a third the size of the United States.  The costs of travel to Chennai, hotel accommodations and absence from work unnecessarily burden Indian companies and visa applicants.  The official explanation for this change is phrased in a way that would make George Orwell smirk: 

This change is in order to streamline the blanket L visa issuance process, and is part of the U.S. Government’s ongoing effort to provide efficient visa services throughout India. [Bolding in original.]

I guess it's hard to kickstart economic statecraft and negotiate a mutually beneficial BIT with India when one awkward "technical" obstacle stands in the way.  Federal immigration bureaucrats must first get rid of the Indians-unwelcome mat.

Are we a trustworthy nation?  The world waits to see if the American government becomes a deadbeat on August 2, when the debt ceiling is hit.  Will the country break faith with its creditors?  Will it stiff Social Security recipients, the ill and disabled, fallen warriors and others whose lives or fortunes depend on Uncle Sam's unflagging reliability.

The New York Times reported recently on a set of already broken American oaths. Many would-be "Special Immigrants" in Iraq who've worked for the U.S., are stranded there, facing death threats, living in stairwells, checking for car bombs underneath their vehicles, losing hope that their oft-promised yet long-delayed U.S. visas will ever arrive -- green cards that Congress ordered to be fast-tracked -- all the time chastising themselves for their gullible belief in America's words.

A letter writer commenting on the Times story bewailed our "exceptional[ly]" roguish behavior: 

What have we become? Our word means nothing now. We break our word to Iraqi friends who helped us. Do we think that those whom we’ve left dangling in the wind will remain our friends? We want to break our word on debts we’ve already accrued.

Do we think that our creditors will continue to invest in us because we are “exceptional”? . . . I despair for a country that I see becoming . . . more removed from what I once thought were our high moral standards. And a country that does not keep its word.

As these despondent Iraqis have come to realize, institutional word-breaking is endemic within the U.S. immigration ecosystem. One small example tells a tale.

Consider the H-1B visa available to nonimmigrant workers in "specialty occupations" who possess at least a university sheepskin or its equivalent in the workaday world.  For those who prefer their learning via chart rather than text, click here; otherwise, read the following indented paragraphs:

This visa started life in 1952 as the H-1 for employees of "distinguished merit and ability" -- a term later interpreted to refer to degreed or degree-equivalent "professionals." In 1990, however, Congress rebranded the visa the H-1B and added an array of worker protections to be enforced by the Department of Labor (DOL), including a requirement that foreign citizens in H-1B status receive at least the going rate (the "prevailing wage") in the local area. The process was designed to be speedy.  It would be "attestation-driven" with penalties applied only later if DOL were to investigate a complaint and find that an employer had violated the worker-protection duties of the law.  The employer's attestation, in the form of promises that must be kept, is made under oath on a form known as a "Labor Condition Application," or LCA. 

The DOL is obliged to "certify" an LCA unless it is "incomplete" or "obviously inaccurate."  The employer then submits the certified LCA to an agency of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), together with a work-visa petition. USCIS then determines if the job and the worker qualify as "specialty occupations," meaning that the job requires and the individual possesses that combination of theoretical and practical knowledge typically gained in a baccalaureate program or through equivalent work experience. Thus, the DOL protects H-1B workers, while USCIS confirms visa eligibility.  All was well with the world, or so we thought . . .

Because the prevailing wage is defined by geography (usually the wage considered prevalent in a particular metropolitan area), the DOL maintains listings of prevailing wages for locales around the country.  If an employer learns of an unforeseen business need to dispatch an H-1B worker to a worksite not listed in the LCA, the DOL requires the employer to file a new LCA and obtain DOL's certification.

USCIS's H-1B regulations, however, do not expressly require employers to submit a new or amended visa petition when the change merely involves a job relocation.  After all, there'd be no reason, in principle, why such a filing would be necessary, since the employee and the job itself would not have changed.  Both would still be the very same specialty occupations that USCIS had already screened and approved. 

To be sure, at one point in 1998, USCIS's predecessor, the Immigration and Naturalization Service (INS), had proposed a rule that an amended petition be filed for such job changes, but never took final action.  Instead, INS twice issued policy guidance, the Hogan and Aleinikoff memos, that each confirmed there is no need to report such changes unless the change invalidated the LCA.  The problem for INS and now USCIS, however, is that the DOL regulations do not prescribe any situations which invalidate an LCA.  Under DOL rules, an LCA may only be withdrawn by the employer or allowed to expire.

The view that a "geographic move" by an H-1B worker is not a material change (presumably because such a move does not by itself invalidate the associated LCA) was then confirmed by a senior USCIS official, Efren Hernandez III, Director of the agency's Business and Trade Branch, in 2003 correspondence to the American Council for International Personnel.

Now comes the institutional word-breaking.  Recently, USCIS has begun to rule in numerous individual cases that the employer's failure to amend the H-1B petition (something only the employer can do) and secure the agency's okay for a worker's change of job location means that the H-1B worker -- merely by following her employer's instructions to appear at a new worksite -- has violated nonimmigrant status.  Failing to maintain status is no small matter.  It is a violation of law that can lead to the worker's and her family's removal from the United States and banishment for at least five years.  It can also cause the employer to be charged with continuing to employ the worker while knowing that the right to work has been terminated -- a felony  -- unless the employer immediately fires the worker. 

The bitter irony here is that by relying on the USCIS to keep its word the guileless, relocated worker (the supposed "beneficiary" of H-1B labor protections) and the trusting employer have been placed into a cauldron of hot immigration water. Also ironic is the notion that serious thought is given to "Rewarding Employers Who Play by the Rules," as the Migration Policy Institute recommends, when the agency conferring the reward has systematically failed to publish intelligible rules of play.

How could this happen?  Four plausible theories come to mind:

1. Failure to publish a final rule.  Legacy INS and its successor, USCIS, must be greater believers in "The Secret" (visualize intention and it will manifest) than in the notice-and-comment prescripts of the Administrative Procedures Act.  Just because the agencies float an idea publicly does not make it binding law.
2. Ignorance of DOL regulations.  When Messrs. Hogan and Aleinikoff issued policy guidance, it seems no one bothered to study the DOL regulations.  Had they done so, they would have understood that LCAs can never be "invalidated." Hence, they would not have referred to the "invalidation" of the LCA, but would have at least expressly stated in policy guidance (or better yet in a final regulation) that an H-1B worker's change in work site from one metropolitan area to another requires the filing of an amended H-1B petition.
3. Writing a letter does not make the letter binding law. USCIS and INS know the rules of procedure and precedent.  They should not have allowed the release of informal, non-binding letters that can only serve to mislead stakeholders.
4. USCIS's creeping mission.  As armies of USCIS Fraud Detection and National Security ("FDNS") investigators and contractors performing "site visits" have appeared at business doorsteps nationwide, some learned that the H-1B worker whose file was to be audited had moved to another job site.  To an unschooled investigator (see # 2 above), this "suspicious" conduct looks like either fraud or a technical violation of the H-1B rules (even if the employer proffers an LCA covering the new worksite). 

None of these reasons justify indifference to the unpaid debts of promises unkept.  The poet, Robert Service, whose surname is what USCIS should be all about, said: "A promise made is a debt unpaid." USCIS should heed the poet's wisdom and put "Services" rightly back into its own name by promptly paying its debts to the stranded Iraqis endangered by American loyalty and by repairing the damage it has caused to relocated H-1B workers and their employers falsely accused of violating U.S. immigration law.

President Obama has put on a good show lately about the need for the populace to rise up and pressure the GOP to enact comprehensive immigration reform.  He urges citizens to begin "a national conversation on immigration reform that builds a bipartisan consensus to fix our broken immigration system so it works for America’s 21st century economy."  With the White House claiming that "he can’t do it alone," he asks you and me to host  roundtables that will "help bring the debate to your community." 

Were it not for the Republicans who keep moving the goal posts on border security, he claimed on May 10 in El Paso, we'd be able, together, to devise the grand solution that fixes our nation's wholly dysfunctional immigration system: 

We have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement. All the stuff they asked for, we’ve done. But even though we’ve answered these concerns, I’ve got to say I suspect there are still going to be some who are trying to move the goal posts on us one more time. . . . they said we needed to triple the Border Patrol. Or now they’re going to say we need to quadruple the Border Patrol. Or they’ll want a higher fence. Maybe they’ll need a moat. (Laughter.) Maybe they want alligators in the moat. (Laughter.) They’ll never be satisfied. And I understand that. That’s politics.

Some may be moved by his crocodile tears to swallow the notion that his hands are tied. I have a few words in response:  Balderdash. Bunkum. Hogwash. Fiddle-faddle.

Either this president is not the analytical, data-gathering, cooly-decisive and valiant leader portrayed by the media, particularly since the takedown of Osama Bid Laden, or, he is playing politics with people's lives and "America’s 21st century economy."  There's no need to repeat previous posts (here, here, here, here, here and there) on his broad executive authority to ameliorate the traumas endured by DREAMers and the other undocumented among us. 

The simple fact, known all too well by immigration insiders but rarely reported, is that President Obama could vastly improve America's competitiveness and stop the flight of foreign talent back to their homelands by reversing or recalibrating several administrative rules or rulings that have long thrown foreign entrepreneurs into the moat with the immigration alligators.  

Here are some things that President Obama could accomplish immediately, solely by executive action, to allow existing America's immigration laws to help create jobs:

• Restore Self-Sponsorship for Working Owners. Since 2010, U.S. Citizenship and Immigration Services (USCIS) has prevented foreign entrepreneurs from receiving an H-1B visa (for workers in specialty occupations).  The agency took this action notwithstanding four precedent decisions, Matter of Aphrodite Investments Limited (1980), Matter of Tessel (1980), Matter of Allan Gee, Inc. (1979) and Matter of M--  (1958), that allowed a foreign citizen to incorporate a business and use the entity to sponsor the individual's work visa or green card.  The President could easily order USCIS to withdraw the 2010 USCIS memorandum that abruptly strayed from precedent decisions, as the American Immigration Lawyers Association (AILA) has urged. 
• Restore L-1A Function-Manager Eligibility. The Immigration Act of 1990 (IMMACT) allows managers of essential corporate functions to qualify for an L-1A work visa (for intracompany transferees) and a first preference green card (for multinational managers).  Before IMMACT, only managers of personnel could be granted these benefits.  USCIS routinely denies function-manager requests by claiming that the person does not manage the particular function but primarily performs the function.  This interpretation has rendered the function-manager category a dead letter.  Congress had no need to create the function manager classification in IMMACT if subordinate personnel were to be required to perform the function (so that the function manager could manage it) since a people-manager category already existed. To offer a simple example, a corporate controller under the current USCIS interpretation cannot qualify as a function manager unless the person manages other people -- something that controllers rarely do. The President can easily remedy this mistaken interpretation by instructing USCIS that managers of key corporate components and functions are eligible for function-manager designation even if the individual also performs the function.  This would allow foreign entrepreneurs to create new U.S. businesses and start creating jobs for U.S. workers right away.
• Restore L-1B Specialized-Knowledge Eligibility. The USCIS Office of Public Outreach got an earful of criticism last week from stakeholders urging the agency to revert to longstanding interpretations of eligibility for an L-1B intracompany transferee visa under the specialized knowledge subcategory. In the teleconference, callers explained that the L-1B had been properly interpreted for decades until 2008 when a non-precedent decision of the USCIS Administrative Appeals Office without warning dramatically restricted its interpretation of L-1B specialized knowledge. Here too, the President could swiftly help foreign entrepreneurs create American jobs by restoring their longstanding ability to send key workers with specialized knowledge to the United States. 
• Expand Schedule A to include “special-merit” foreign citizens.  The Department of Labor (DOL) under its Schedule A regulation has long allowed persons whose skills are in short supply to avoid the labor market test normally required and obtain an employment-based green card. Schedule A now includes registered nurses, physical therapists and persons of exceptional ability. Back in 2002, AILA asked the DOL but the agency refused to expand Schedule A by allowing "special-merit" foreign citizens to immigrate. AILA made this request because the normal labor market rules deprive a wide array of worthy aliens of any opportunity for PERM labor certification.  Individuals in the unwelcome category include investors, entrepreneurs and working owners, and foreign-born employees who are “so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operations without the alien”.  Under orders from the President, the expanded use of Schedule A for these special-merit foreign citizens would allow fair consideration of deserving cases that have had little or no access to labor certification under the current system.
• Allow the filing (but not the approval) of green card applications before the visa quota is open. Today, because of quota backlogs and an unfair allocation system, a person born in India holding a university degree, whose employer's immigrant visa petition has been approved, may have to wait as much as 20 years before being allowed just to file a green card (adjustment of status) application. The wait is only marginally less for those born in China.  During that time, the person's spouse and working-age children ordinarily cannot work, and the children are at risk of "aging-out" -- reaching age 21 and thus losing green-card eligibility. What's worse, if the foreign worker loses his job in the meantime, the whole immigration sponsorship process (if the family involved has the stomach to pursue it) must go back to square one. As much as America may otherwise be attractive to foreign entrepreneurs and key workers, no sane person would find the risk and limitations of these waiting periods enticing.  In a New York minute, if he were so inclined, President Obama could make the wait more tolerable.  All he'd need to do is instruct USCIS to accept for filing adjustment applications for the beneficiaries of approved immigrant visa petitions and issue a rule freezing the dependent children's age as of the date of filing the green card application.  This way, in the interim until the quota is current, the spouse and working-age children could work or study, and the foreign employee would not be tempted to give up on America, return home and compete against us.

President Obama is no fool.  He understands the link between immigration, innovation and job creation, as he explained to the crowd in El Paso:

[O]ur laws discourage [foreign students educated in the U.S.] from using those skills to start a business or a new industry here in the United States. Instead of training entrepreneurs to stay here, we train them to create jobs for our competition. That makes no sense. In a global marketplace, we need all the talent we can attract, all the talent we can get to stay here to start businesses -- not just to benefit those individuals, but because their contribution will benefit all Americans. 

Look at Intel, look at Google, look at Yahoo, look at eBay. All those great American companies, all the jobs they've created, everything that has helped us take leadership in the high-tech industry, every one of those was founded by, guess who, an immigrant. (Applause.) 

So we don’t want the next Intel or the next Google to be created in China or India. We want those companies and jobs to take root here. (Applause.) Bill Gates gets this. He knows a little something about the high-tech industry. He said, “The United States will find it far more difficult to maintain its competitive edge if it excludes those who are able and willing to help us compete.” 

So immigration is not just the right thing to do. It’s smart for our economy. It’s smart for our economy. (Applause.) And it’s for this reason that businesses all across America are demanding that Washington finally meet its responsibilities to solve the immigration problem.

Why does the President wait for Congress to act when he has his executive pen in his pocket?  Why should immediate job creation be held hostage to Washingtonian impasse, when the job-eating immigration alligators under his control can be easily restrained?  I'm no politico, but it's politics, I suppose.

On February 18 and 19, the University of California (Irvine) hosted a symposium where many of U.S. immigration's Rock-Star professors came together to try and solve "Persistent Puzzles in Immigration Law."  The topics covered a wide expanse. A subject discussed that particularly interested me is Congress's often inexplicable delegation of regulatory authority among a surfeit of federal agencies that administer and enforce the immigration laws, each with its area of real (or presumed) expertise and overlapping responsibilities. 

One speaker mentioned her concern about the possible mis-use of E-Verify by some employers to screen current or would-be workers for employment eligibility, even though that kind of screening violates the terms of use under the memorandum of understanding with Homeland Security (DHS).  She proposed that perhaps Congress should authorize the Department of Labor (DOL) to investigate and punish this type of violation.  During the Q & A, I suggested that, even if the problem is as widespread as the speaker feared, the Department of Justice (DOJ) should do the policing, because, based on my experience, DOL must first improve its abysmal record of administering the immigration laws before Congress grants it any more power.

Regular readers of this blog would be forgiven for assuming, given my recent rants on labor certification (here and here), that the DOL's PERM program had come to my mind.  No, actually I was thinking of the H-1B program and a January 2011 Government Accountability Office report (GAO-11-26). Although the report contains a wealth of data, and is written from a glass-half-empty perspective, it actually shows that access to cheap foreign labor -- the usual slam against the category -- is not the real motivation for its use.  Rather, as the National Foundation for American Policy notes in its analysis of the GAO data, "hiring the best candidate for the job, whether U.S.-born or foreign-born, is the primary consideration for employers" who sponsor H-1B workers.

I will offer many critiques of the economy-harming H-1B program in future blog postings, and assail the GAO's flawed analysis and implied bias reflected in the title of its report ("H-1B VISA PROGRAM - Reforms Are Needed to Minimize the Risks and Costs of Current Program").  For now, in the au courant Washington spirit of reducing government expenditures and eliminating unnecessary regulations that burden business, I propose that Congress take the DOL out of the H-1B application process altogether, and that USCIS serve solely to approve or deny H-1B visa petitions and grants of nonimmigrant status.  

To gain a visual understanding of my point, consider this GAO chart depicting the current H-1B process:

As the chart shows, the only role for the DOL at the outset of the H-1B process is to perform a ministerial task, i.e., to review an employer attestation form (known as the Labor Condition Application or LCA) to confirm that it is not "incomplete or obviously inaccurate."  The GAO agrees with me that Congress should consider eliminating this step, and instead requiring U.S. Citizenship and Immigration Services (USCIS) to receive and certify the LCA when adjudicating the H-1B visa petition:

To reduce duplication and fragmentation in the administration and oversight of the H-1B application process, consistent with past GAO matters for congressional consideration, [Congress should] consider eliminating the requirement that employers first submit a Labor Condition Application (LCA) to the Department of Labor for certification, and require instead that employers submit this application along with the I-129 application to the Department of Homeland Security’s U.S. Citizenship and Immigration Services for review.

Eliminating the LCA review by DOL would shave seven days off the time it takes before USCIS can adjudicate an H-1B petition, since this is the time Congress provided the DOL to "certify" the LCA. This savings of time is especially important each year in March when every day counts as employers scramble to file their H-1B petitions by April Fools Day in order to fall within the woefully small H-1B annual quota. 

USCIS opposes the GAO's suggestion, however, offering the following rationale to the GAO:

Homeland Security officials believed that Labor would be better suited to review the LCA because Labor has specialized knowledge about the computation of prevailing wages.

USCIS's justification for shirking a task that would result in an obvious time- and cost-savings doesn't stand up to close scrutiny.  Most employers use the DOL's online O*Net database and Standard Occupational Classifications to obtain the prevailing wage, and USCIS could easily cross-check those sources (as it now does with its VIBE system) to make sure the correct wage figure is used.  Even in the comparatively rare situations where an employer submits an alternate wage source, USCIS could easily adopt and apply DOL's regulations on the requirements for use of a union contract, an "independent authoritative source" survey, or "[an]other legitimate source" of prevailing wage data, or consult with the DOL.

Avoiding front-end delay is just a first step in process improvement.  The more urgent challenge is how best to consolidate enforcement of the H-1 program in one agency.  The current enforcement hodgepodge is reflected in this GAO chart:   

There is no reason that H-1B employers, by regulation, must be prepared to face a triad of investigations by three federal agencies housed in three different departments.  H-1B enforcement responsibility should be consolidated into one agency, and the rules governing the procedures, scope and duration of an investigation, along with employer due process protections (such as the Good Faith Compliance defense added by the H-1B Visa Reform Act of 2004) should be promulgated under the customary requirements of public notice and opportunity for comment under the Administrative Procedures Act. 

As I suggested to the immigration law professors, my recommendation would be to place all immigration policing authority with the Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) in the Justice Department under an expanded grant of authority.  The money we'd save and the burdens lifted by permitting USCIS to serve as sole H-1B adjudicator and pinning on OSC the lone sheriff's star would be substantial. An added benefit would be that a neutral actor, the Justice Department, would have no dog in the fight, unlike the DOL whose mission is "foster[ing] and promot[ing] the welfare of the job seekers, wage earners, and retirees of the United States," rather than according fair process to employers. 

So, Congress, in keeping with the zeitgeist, can you spell?:

I-M-M-I-G-R-A-T-I-O-N

D-E-F-I-C-I-T

R-E-D-U-C-T-I-O-N