THE TRUTH ABOUT HIGH-SKILLED IMMIGRATION

Immigration Reform Needed to Save Nacirema: Why Senator Grassley’s Comments to the Senate Judiciary Committee Represent a Major Step Backward for Informed Discourse on High-Skilled Immigration

INTRODUCTION

In June 1956, Anthropologist Horace Mitchell Miner published an article titled “Body Ritual Among the Nacirema." In March 2015, Senator Chuck Grassley gave a statement to the Senate Judiciary Committee titled “Immigration Reforms Needed to Protect Skilled American Workers.” In their respective pieces, both Miner and Grassley deliberately describe facts in a way that makes something productive and effective sound absurd and even abhorrent. The difference is one is funny and thought provoking while the other is misleading and counterfactual. 

In “Body Ritual Among the Nacirema" (Nacirema is American spelled backwards), Miner describes common habits like brushing one’s teeth in ways that makes the act seem less like a practice of most hygienic individuals and more like a bizarre cultural ritual of a far off civilization.  In doing so Miner attempts to satirize anthropological studies on other cultures. He writes: “The daily body ritual performed by everyone includes a mouth-rite . . . . [T]his rite involves a practice which strikes the uninitiated stranger as revolting. It was reported to me that the ritual consists of inserting a small bundle of hog hairs into the mouth, along with certain magical powders, and then moving the bundle in a highly formalized series of gestures.”

In “Immigration Reforms Needed to Protect Skilled American Workers,” Grassley conflates issues, cherry picks facts and relies on inaccurate studies and unrepresentative anecdotes to make the legal employment of foreign workers, which brings high-skilled talent to U.S. companies and attracts top entrepreneurs and innovators, seem like a unregulated scheme intended to rip jobs from the hands of qualified American workers. Grassley states: “The lives of U.S. workers and families are on the line.  Will we do everything we can to protect future generations who desperately want to work in the high skilled sector?   Or, will we simply ignore the plight of those who have lost their jobs and had to train their foreign replacements?”  Such sensationalism and misrepresentation of the facts surrounding legal employment based immigration-a critical driver of the U.S. economy and job creation- erodes educated and civil dialogue on these important issues.

Our U.S. immigration system is far from perfect and smart reform that reduces fraud, promotes national security, and attracts the best and brightest global talent, is needed and welcome.  Rather than engaging in reasoned and educated dialogue that considers the numerous complexities of the immigration debate, Grassley presents a myopic view of the issues in an effort to instill a sense of fear, stifling progress on meaningful reform. We hope this article will help to flesh out the facts surrounding employment-based immigration of high skilled workers and leave readers with a more complete understanding of this complex issue.

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USCIS RELEASES DRAFT L-1B POLICY MEMORANDUM

WHAT’S HAPPENING

USCIS has released a draft of its L-1B policy memorandum which seeks to clarify eligibility for the L-1B “Specialized Knowledge” nonimmigrant visa, an area of USCIS adjudications that has been plagued by inconsistent adjudication, high denial rates, and a lack of clarity regarding the definition of “Specialized Knowledge.”

WHO THIS IMPACTS

With the L-1B denial rate reaching 35%, this long-awaited policy memo seeks to provide “consolidated and authoritative guidance on the L-1B program…” with the hope that it will clarify how L-1B petitioners may demonstrate that an employee qualifies for L-1B classification.

The memo affirms that a beneficiary seeking L-1B classification should possess either:

(1) Special Knowledge, which is knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer; or

(2) Advanced Knowledge, which is knowledge or expertise in the organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the petitioning employer.

The memo clarifies that the standard of review adjudicators should apply when reviewing L-1B petitions is whether the petitioner meets each eligibility requirement by a “preponderance of the evidence,” and directs officers not to apply higher standards of review such as “beyond a reasonable doubt” or by “clear and convincing evidence.” The memo also confirms that the specialized knowledge need not be proprietary nor narrowly held within the petitioning organization in order for a position to qualify.

Further, the memo confirms that L-1B employees are not prohibited from working off-site, provided the employer/petitioner maintains the principal control and supervision of the employee.

THINGS TO KEEP IN MIND

Although the memo clarifies a number of points often used by USCIS adjudicators when issuing challenges and denials, it also gives officers the authority to consider the “spectrum of employees in the U.S. operations who possess the requisite specialized knowledge” and consider the beneficiary’s wage as a factor when determining the organization’s need to transfer the beneficiary to the United States. This inherent subjectivity could continue to result in inconsistent adjudications in this visa classification.

USCIS has issued the draft memorandum for public review and feedback and will be accepting comments on the draft through May 8, 2015. The memorandum is scheduled for final publication on August 31, 2015.