August 24 2015 - Last month, the Office of Management and Budget released a plan for modernizing and streamlining the legal immigration system. Much of the focus was on the potential positive impact of digital innovation. Recommendations included the creation of a cross-agency digital services team to support the implementation of the modernized immigrant visa project. This team would be charged with improving the visa applicant experience and increasing efficiencies in the adjudication process through digitization. The plan rightly points out that "currently, the immigration application and adjudication process is mostly paper-based, requiring documents to change hands and locations among various federal actors at least six times for some petitions." Or in many cases, the same information must be sent separately, and in different formats, to several agencies, several times. Take for example the H-1B nonimmigrant visa category for specialty occupations. This category alone requires coordination between the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), the Department of State (DOS) and Customs and Border Protection (CBP).
The DOL piece of the puzzle, the Labor Condition Application (LCA), has had an electronic option since 2002 and is today entirely online. An employer may submit an LCA, post notice of filing and receive approval of certification from DOL without a single piece of paper. However, the five-page LCA, once certified, must be printed out, signed and sent to one of USCIS's Service Centers in Vermont or California as part of the H-1B petition. And the LCA is not alone; USCIS's forms must also be printed out and included with paper checks for filing fees which can exceed $3,500 and supporting documents which in total will easily exceed twenty pages. To add to the paper submission, an entire copy of all documents submitted to USCIS must also be included so USCIS may physically send them to the DOS's Kentucky Consular Center to be scanned and uploaded to the Petition Information Management Service. And for H-1B cap cases, submitting the case to USCIS only means that a USCIS officer will collect the petitioner and beneficiary data and enter the case in a lottery. The majority of cases which are not selected are put back in envelopes and returned to petitioners by mail.
Those H-1B petitions that are selected, or that are cap-exempt, will be reviewed. If USCIS is not satisfied with the documents initially submitted, it will issue a Request for Evidence by mail. The petitioner's response must be submitted in duplicate by mail, or for those still fond of the 1990s, by fax. Once approved, USCIS will send a two-page approval notice to the petitioner. Should the beneficiary require a visa, the case will then move to the DOS phase. DOS for its part has required online electronic applications of all non-immigrant visa applicants worldwide since 2010. However, many consular posts still recommend that visa applicants have a full hardcopy of the petition submitted to USCIS with them for their visa application interview. In many cases, an H-1B visa will not be issued on the first submission. Additional paper documentation may need to be couriered to a consular post before the application is approved. Finally, with a visa endorsement in a passport, a beneficiary is still well advised, and in some cases required, to have an original USCIS approval notice to present to CBP on entry to the U.S.
With 318,824 H-1B petitions submitted to USCIS in 2014, 233,000 H-1B petitions submitted in the first week of April 2015 alone, and 179,408 H-1B visa applications submitted to consular posts worldwide in 2014, the cost of this inefficient and redundant process to U.S. employers and the U.S. government, not to mention the environment, is significant.
While the H-1B is the most common non-immigrant work visa, it is only a small piece of the entire immigration system which includes non-immigrant visa categories from A to U, family and employment based immigrant visa categories, immigrant investors, the diversity lottery and others. According to DOS statistics, nearly 10 million non-immigrant and immigrant visas were issued worldwide in 2014.
A digital, paperless system is not a panacea, especially if the system is not robust, nimble or thoroughly tested prior to its launch. We have seen for two consecutive years the DOS Consular Consolidated Database crash in the height of the summer visa rush. Applicants around the world were effectively stuck in visa limbo for more than two weeks before the system was repaired and brought back on line. The DOS's National Visa Center (NVC) in New Hampshire, too, suffers from online payment issues which delay the processing of immigrant visa applicants' cases, many of whom are separated from their U.S. citizen spouses while they wait. The DOL iCert system has its own issues, including technical denials and technology that struggles to cope in the run up to H-1B cap season. Modernizing our immigration system to a coordinated digital process will take a significant investment of time and resources. But with a wealth of expertise in the stakeholder pool, the input, knowledge and best practices required are available.
The Office of Management and Budget plan also included a recommendation to redesign systems with an eye towards a human perspective and accessibility for users. Ironically, a more digital system will result in a more human perspective than the current process. Instead of mailing a bundle of papers to a vast, remote service center, applicants will have an online connection and will be able to communicate in real time through webchats, email and text. Instead of petitions being physically sent from a client's office to an attorney's office, to a USCIS service center, to a DOS center in Kentucky or New Hampshire, to a U.S. consular post in any part of the world, an entire visa process could be submitted, reviewed and approved with the click of a mouse or tap of a screen. The human perspective has shifted to an online experience. The world has become smaller and technology is more accessible. The systems currently in place by DOL and DOS are a good start, but with a concerted, planned effort, the immigration process can be brought into the 21st century. And with a coordinated, modern, working digital immigration system, Congress may just take notice and act to replace our current antiquated immigration laws with immigration laws fit for the 21st century.
Anastasia Tonello is the Managing Partner of Laura Devine Attorneys LLC in New York and a partner of Laura Devine
Solicitors in London. Anastasia is also global head of the US immigration team. Contact:
Having managed successful immigration practices in New York and London Anastasia is well placed to advise clients on the commercial and practical issues facing overseas businesses as they expand into the US. She has extensive experience advising a range of individuals, including entrepreneurs, high net worth clients, entertainers and artists, and has particular expertise advising on investor, extraordinary ability and family based petitions.
Laura Devine Solicitors is the leading boutique immigration firm in the UK, advising both corporate and individual clients on the full spectrum of UK and US immigration and nationality law solutions. The firm has a long-established reputation for excellence, being recognised as a pre-eminent immigration practice in 'band 1' of independent legal directories, with many of its lawyers similarly top-ranked as leading immigration experts.