Submitted via https://www.federalregister.gov/documents/2021/04/19/2021-07987/identifying-barriers-across-us-citizenship-and-immigration-services-uscis-benefits-and-services

Samantha Deshommes
Chief, Regulatory Coordination Division, Office of Policy and Strategy
U.S. Citizenship and Immigration Services
U.S. Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746

Re: EPI and JiM Comment on Identifying Barriers Across U.S. Citizenship and Immigration Services (USCIS) Benefits and Services (DHS Docket No. USCIS-2021-0004)

Dear Ms. Deshommes,

The Economic Policy Institute (EPI) and Justice in Motion (JiM) appreciate the opportunity to submit a comment on ways that the United States Citizenship and Immigration Services (USCIS) can eliminate barriers, improve its services, and promote equity and inclusion through its processes.

EPI is a nonprofit, nonpartisan think tank established in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers—regardless of immigration status—and assesses policies with respect to how well they further those goals. EPI has researched, written, and commented extensively on the U.S. system for labor migration—through public comments, publications, and testimony—including in particular, with respect to the immigrant and nonimmigrant visas that USCIS and other components of DHS are responsible for managing and overseeing. EPI submits these comments to USCIS, as well as related agencies within the U.S. Department of Homeland Security (DHS), in response to their request for public input.

Justice in Motion is a U.S. based NGO dedicated to protecting migrant rights by ensuring justice across borders. Justice in Motion is deeply involved in training and supporting a Defender Network, comprised of human rights advocates in migrants’ countries of origin. The Network educates workers on their rights before they migrate, partners with advocates in the countries of employment on specific cases of labor exploitation, and advocates for systemic change. Justice in Motion provides training, advice, referrals, and case facilitation support to U.S. and Canadian advocates after their migrant clients return home. Justice in Motion also engages in policy advocacy, both nationally and internationally, adding insight into how various temporary work programs operate, from the perspective of both the countries of employment and origin. We have projects in the United States, Mexico, Guatemala, El Salvador, Honduras, and Nicaragua. Justice in Motion submits these comments as part of the public input solicited by USCIS.

EPI and Justice in Motion have been frequent users of data from various agencies within DHS, sometimes having to partner with academics and organizations to acquire it via Freedom of Information Act request, and have argued frequently that USCIS and other subagencies in DHS should make the data it collects and stores more readily available to the public, in particular when those data would help protect U.S. labor standards, benefit migrant and American workers, as well as help prevent abuses like human trafficking. As multiple advocacy groups have revealed, many cases of human trafficking are often facilitated through the U.S. legal immigration system, in part because of insufficient oversight and the lack of transparency.1 These comments are motivated by the need for DHS to do more to protect the migrants that interface with the U.S. immigration system and to provide more transparency about the benefits it grants so they can be better evaluated by the public, to ensure they are consistent with uplifting labor standards for all workers in the U.S. labor force, regardless of immigration status.

I. DHS SHOULD TRANSITION TOWARDS ELECTRONIC COLLECTION OF INFORMATION AND FILING FOR IMMIGRANT AND NONIMMIGRANT PETITIONS.

The ability of agencies to collect the key information on immigrant and nonimmigrant visas, and ultimately make that information public, would be much easier if applications for immigration benefits were electronic rather than filled out and submitted on paper forms. This would streamline the entire application and adjudication process and lower expenses, while also making the process easier and more accessible to employers and other stakeholders. Former USCIS director Francis Cissna stated publicly in 2018 that his “top priority” was to convert USCIS into an agency that is paperless when it comes to the agency’s intake forms, which would include electronic applications and petitions. Director Cissna told Bloomberg Law in an interview that “it’s going to happen before the end of 2020,” but that goal never became a reality.2

One of the top priorities with respect to transitioning DHS into an electronic versus a paper-based agency should be to digitize the collection and submission of USCIS Form I-129. USCIS processes 500,000 to one million petitions each year on the Form I-129 alone, which are submitted on paper, sometimes arriving by the ”truckload.”3 Making the form electronic would save the agency and employers significant amounts of time and money. In addition, since a large share of the most valuable information on nonimmigrant work visas comes from the USCIS Form I-129, transitioning to an electronic Form I-129 will ensure that most of the key data on nonimmigrant visas is collected and stored electronically. That in turn will reduce the need for staff time and resources to be spent on preparing annual reports on nonimmigrant visa data or compiling spreadsheets to respond to Freedom of Information Act (FOIA) requests.

II. DHS SHOULD IMPROVE TRANSPARENCY IN NONIMMIGRANT, TEMPORARY WORK VISA PROGRAMS TO PROTECT WORKERS AND AID ANTI-TRAFFICKING EFFORTS.

Urgent reforms to data collection and publication processes are needed at USCIS and other subagencies within DHS in order to more broadly protect labor standards and modernize the immigration system. Such reforms would help DHS meet statutory obligations and regulatory objectives and requirements in both immigrant and nonimmigrant visa programs that are intended to protect migrant workers from abuse and exploitation and to prevent adverse impacts on the U.S. labor market. Making the reforms we suggest would also reduce burdens on the public and stakeholders and reduce confusion and save time for those who interface with DHS and/or utilize its data. Many of the changes we discuss would be simple and inexpensive, while some could be automated entirely if USCIS would also focus on updating the forms and technologies it utilizes to collect information and grant immigration benefits, as discussed in the previous section.

To begin and in the broadest terms, there should be much more transparency in nonimmigrant visa classifications that authorize employment.

Over the past several decades, millions of temporary migrant workers have come to the United States through nonimmigrant visa programs.4 The programs have grown exponentially since passage of the Immigration Act of 1990, and business groups lobby extensively to expand and deregulate them, meaning they are likely to continue to grow. But there is a severe lack of transparency about how the programs operate, while there are concrete examples of human trafficking facilitated by almost every nonimmigrant work visa classification. Different advocacy groups estimate that 40-70 percent of the potential and known victims of human trafficking were abused while participating in a U.S. visa program. Despite this clear evidence of nonimmigrant visa holders being victims of human trafficking, there is a lack of publicly available information about the visa programs that are being used. Although DHS—through its subagency, USCIS—currently collects a significant amount of data on nonimmigrant visas that authorize employment through its various applications and administrative forms—the vast majority of the information is not published and does not become public unless obtained through a FOIA request.

The operation and governance of some nonimmigrant work visas are essentially “hidden,” in the sense that very little is known about them. An example that is currently in the news is the R-1 nonimmigrant visa for religious workers. The NY Times this month reported on a potential case of forced labor in New Jersey, where Indian workers were recruited through R-1 visas, where they have been working as construction workers building a religious temple, while being paid only $1 per hour and confined to the trailers on the grounds where they work.5 Neither journalists nor migrant worker advocates are able to obtain more information about the employer and the terms and conditions that were promised to the Indian workers, because the data are not made public.

And in some cases involving nonimmigrant workers, the work takes place in private homes, behind closed doors. For example, little is known publicly about the employers and workers in the B-1 domestic servant category because DHS does not publish data on the employers hiring B-1 domestic servants, despite the fact that there have been several potential cases alleging the trafficking of B-1 domestic workers that have come to light. B-1 domestic servants are a subcategory of the B-1 nonimmigrant visa that normally does not permit employment (the domestic servant category being a rare exception). This combined with the fact that these visa-holders work in private residences, makes it difficult to know how the visa is used and to take actions to protect these workers who are in private workplaces and vulnerable as a result. J-1 nonimmigrants employed in the au pair program are also employed inside of private homes, and no data are made available about the program, while multiple news exposés and government reports have revealed how the program is a “poorly regulated, exploitative system that fails to act on allegations of physical and sexual abuse.”6

Having DHS report on these lesser-known visas would shed light on the programs and what the government is doing, if anything, to ensure that the terms and conditions of employment offered to nonimmigrant workers are fair and that their rights are protected.

Furthermore, too little is known about how temporary work visa programs are being used, in part because data on visas are collected on paper forms and applications rather than electronically (as discussed above), and even most of the digitized information collected is not made public or requires lengthy and costly FOIA requests to obtain. Migrant worker advocates have pressed for years for more and better government data and transparency in work visa programs to ensure that migrants are being paid fairly, and that the immigration system is not being co-opted in ways that allow employers to discriminate and segregate the workforce. More data would also serve as a tool that could aid the organizations and advocates who are fighting human trafficking. Bipartisan legislation has been introduced to achieve this, most recently as the Visa Transparency Anti-Trafficking Act, 7 but opposition by employers has caused it to stall.

Transparency has been a declared priority for the federal government at different points in the last few administrations. The Obama administration announced in January of 2009 that transparency would be a priority going forward. The President declared that the government should be transparent, participatory, and collaborative. With the idea that openness strengthens democracy and promotes efficiency and effectiveness in government, President Obama ordered all executive departments and agencies to employ new technology to disseminate information about operations and decisions on the internet, easily accessible to the public.8 Though these goals weren’t entirely accomplished during Obama’s time as president, they were marked as priorities during those eight years. On April 18, 2017, President Trump signed the Buy American and Hire American (BAHA) Executive Order, which led to the creation of the BAHA data website, which published extensive new data on the H-1B, H-2B, and L-1 visa programs, even though publication was not an explicit requirement of the Executive Order.

These initiatives show that transparency and the use of the technology necessary for transparency are not new ideas and enjoy some bipartisan support across vastly different administrations.

However, recent reports have suggested that—disturbingly—the Biden administration is considering scaling back on the data it currently releases on work visas programs, noting that “The types of visa data released to the public are likely to change now … particularly when it comes to employer participation in hiring visa workers.”9 This is an unfortunate and unjustified development. As researchers and advocates, we urge the Department to reconsider its position and to take concrete steps towards more transparency, rather than towards the concealment of information that should be freely available, because of its utility for improving the governance of the U.S. immigration system.

Below, in this section we discuss some of the relevant data that are currently housed within USCIS and other subagencies at DHS, and then list some of the specific actions that DHS could take to promote transparency and achieve some of the related goals it has identified in the request for public input.

United States Citizenship and Immigration Services Data

United States Citizenship and Immigration Services (USCIS) collects key information on many of the major nonimmigrant work visas, particularly through information provided by employers on Form I-129, Petition for a Nonimmigrant Worker. Most of the data from the Form I-129 are not currently made public. Beginning in 2017, data that were previously unpublished began to be made publicly available on the Buy American, Hire American (BAHA) page on USCIS’s website, but in 2021 the order was been repealed and the site appears to have been put into an archival status by the Biden administration.10 Other data that are available can be found in the Characteristics of H-1B Specialty Occupation Workers reports and Characteristics of H-2B Nonagricultural Temporary Workers reports, although some other bits of information are scattered in USCIS’s website.

The USCIS “Reading Room” makes certain data and documents available to the public, noting that it is “providing access to information that had been requested at least three times and had been provided under the Freedom of Information Act,”11 for all data requests. However, multiple data sets we have reviewed are incomplete. For example, in the document available in the USCIS Reading Room titled, “I-129 Approvals for FY 2019,” there should be approximately records for 130,000 H-1B approvals, which was the number of new H-1B approvals in fiscal year 2019. However, there are only records for about 79,000 approvals, which means the data in the excel file likely only represent two fiscal year quarters-worth of H-1B approvals.12

Through the Form I-129, data are collected that describes both employers (company name, location, and denial/approval) and visa beneficiaries (gender, country of origin, and occupation). However, the information that is published by USCIS in the aforementioned locations is not uniform between visa classifications. For example, gender information is available for H-1B workers, but not for H-2B workers.

Immigration and Customs Enforcement Data

U.S. Immigration and Customs Enforcement (ICE) collects key information on M-1, F-1, and J-1 nonimmigrant visas through the Student and Exchange Visitor Information System (SEVIS). Some nonimmigrants in these visa classifications are either eligible to be employed under the terms of their visa or eligible to receive Employment Authorization Documents (EADs) from USCIS. ICE also has data on programs that allow F-1 nonimmigrant students to be employed: the Optional Practical Training (OPT) program; the OPT program for graduates with degrees in science, technology, engineering, and mathematics (STEM OPT); and the Curricular Practical Training (CPT) program. ICE’s SEVIS data are published on the Student and Exchange Visitor (SEVP) Data Library page of their website, and the information provided includes aggregated information on the total number of EADs issued to F-1 nonimmigrants in OPT, STEM-OPT, and CPT. Data on the top employers of F-1 nonimmigrants in OPT, STEM-OPT, and CPT were previously published, but the 2021 data update from the Biden administration did not publish information on the employers using these programs. (Individual-level data on OPT or CPT have never been published but have been acquired by FOIA request.)

Specific actions DHS should take to improve data transparency with the goal of protecting workers and aiding anti-trafficking efforts

1. Improve the data available on the USCIS Electronic Reading Room.

Data in the USCIS Electronic Reading Room are often not easy to find and as noted above, multiple data sets are incomplete. USCIS should ensure that data sets posted are complete and cover all visa classifications that are available and/or have been requested through FOIA.

2. Do not backtrack on transparency by no longer publishing the data that were available on the BAHA data page.

As noted above, the USCIS BAHA data page has been archived and it does not appear that USCIS will be updating the data published there, which included multiple data sets that were available for the first time, including petition data on H-2B and EADs, as well as numerous data sets on H-1B, including gender, the number of H-1B workers that are able to change jobs, data on F-1 foreign graduates who are able to adjust to H-1B status, as well as the number and percentages of H-1B petitions that were required to submit requests for evidence (RFEs) and the denial and approval rates of those petitions.

While we understand that it was the Biden administration’s prerogative to repeal the BAHA Executive Order, the issue of data transparency should be kept separate, and the Executive Order does not have to be in force for USCIS to publish those data. If USCIS decides that it does not wish to continue create a new page to replace the BAHA data page with the same information, it could simply begin posting the same data, along with updated data for FY 2020 and beyond, on the USCIS Electronic Reading Room. This would be a cost-effective option using available infrastructure that would benefit the public and assist migrant worker and anti-human trafficking advocates in fulfilling their missions.

3. USCIS should make data on individual H-2A and H-2B petitions available consistent with its practice for H-1B.

The individual level (microdata) sets available for H-1B on the USCIS Electronic Reading Room contain individual records on H-1B that list information from petitions, including:

• Fiscal Year the petition was submitted in,
• Whether the petition was approved or denied,
• Date the petition was received,
• Date the petition was approved,
• Whether the petition was subject to the annual cap or exempt from the cap,
• Employer name,
• Employer Zip code,
• Employer state,
• Occupation,
• Occupation code,
• Whether the beneficiary was formerly on an F-1 student visa,
• Whether the beneficiary holds a master’s degree or higher from a US university,
• The name of the US university attended,
• Salary,
• The beneficiary’s country of birth,
• The beneficiary’s education level,
• The beneficiary’s gender, and
• The expected employment start and end dates.

While many of these are not applicable to H-2A and H-2B, the relevant data from the USCIS Form I-129 for H-2A and H-2B should be published. USCIS petition data on H-2B have only been published for one year, 2017, on the BAHA data page, and at the aggerate level. The only H-2A petition data that are public are the names of employers with approved H-2A petitions (although the number of workers approved for each employer is not reported).

We know that USCIS collects and stores microdata on individual H-2A and H-2B petitions because we have reviewed those records after being acquired through a FOIA request, but they should be made available publicly on a regular basis, and include at least:

• Fiscal Year the petition was submitted in,
• Whether the petition was approved or denied,
• Date the petition was received,
• Date the petition was approved,
• Employer name,
• Employer Zip code,
• Employer state,
• Occupation,
• Occupation code,
• Worksite state
• The number of beneficiaries (workers);
• Salary,
• The beneficiary’s country of birth,
• The expected employment start and end dates.

Publishing these data on H-2A and H-2B on the Electronic Reading Room would make USCIS’s data practices more consistent across visa classifications and be a cost-effective option using available infrastructure that would benefit the public and assist migrant worker and anti-human trafficking advocates in fulfilling their missions.

4. USCIS should no longer use Dictionary of Occupational Titles (DOT) occupation codes for nonimmigrant workers and should begin classifying occupations using Standard Occupational Classification codes.

Data that are made public by the U.S. Department of Labor (DOL) on the H-2A, H-2B, and H-1B work visa programs, as well as for permanent labor certifications, is quite detailed. Those DOL data all utilize Standard Occupational Classification (SOC) codes to classify job occupations that will be filled by migrant workers in those nonimmigrant and immigrant programs, because they are the best and most modern method the government has available to classify occupations. However, those DOL data do not reflect actual approved petitions for immigrant or nonimmigrant workers, they are just the first step in the process when hiring an immigrant or nonimmigrant worker. To illustrate, every year there are approximately one million H-1B jobs certified by DOL, but in fiscal year 2019, only about 130,000 petitions for new employment for H-1B workers were approved by USCIS (the highest total on record for one fiscal year). The data on those 130,000 petitions are the most useful information for analysts and advocates, because they represent actual workers, rather than the DOL information on labor certifications or labor condition applications. But USCIS uses outdated codes for classifying occupations; it uses the Directory of Occupational Titles system (or DOT codes), which are old and outdated, and much broader. As a result, dozens of occupations in the SOC fall could fall under each single DOT code.

There are 867 detailed occupations in the SOC. In the last version of DOT codes (from 1999), there were about 100. There is no rhyme or reason to why USCIS uses the DOT codes, other than the fact that they were already using them before the SOC codes were published. The Government Accountability Office (GAO), in a report about abuses suffered by migrant workers in the context of foreign labor recruitment, titled “H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers,”13 pointed out that their investigative work was more difficult than it had to be when they were reviewing the H-2A and H-2B programs because of USCIS’s use of the DOT codes. Instead of relying on the better USCIS data on petitions, GAO had to rely instead on the DOL data which is not as reliable because it does not represent actual workers.

Here are some of the relevant passages from the GAO report:

While DHS’s USCIS petition data are more accurate than DOL data in terms of the number of workers requested, information about the type of occupations those workers are requested to fill is not coded and maintained electronically using a standard occupational classification system… Instead, they recode the job title from the employer’s petition using an occupational classification system with 15 broad categories. These categories may be further divided into 1 to 12 occupational codes for a total of 83 detailed occupations, as opposed to DOL’s 840 detailed occupations… Officials said USCIS’s current occupational system predates DOL’s use of the SOC system to classify occupations on labor applications. However, the broad and overlapping categories within USCIS’s occupational classification system make it difficult to distinguish the occupations filled by H-2A workers versus H-2B workers even though these programs are targeted to fill occupations in different sectors of the economy.

USCIS plans to change its occupational coding system during its transformation from a paper-based processing of immigration benefits to an electronic processing system, but it has not yet determined which occupational classification system it will use…

By using a nonstandard occupational classification system, the usefulness of USCIS’s data is limited. Ensuring that the electronic petition for H-2A and H-2B visas uses a standardized occupation classification system will better position USCIS to report more reliable data to Congress on the H-2B workers U.S. employers use to fill specific occupations.14

GAO mentioned that USCIS is considering changing their occupational classification system once they move to electronic applications but has not yet decided what it will be changed to. We urge USCIS to abandon the use of DOT codes and begin using SOC codes, consistent with DOL. Doing so will create consistency among key federal agencies in charge of immigration and provide researchers and advocates with a better understanding of the specific occupations that employers are requesting nonimmigrant workers for.

5. ICE should make OPT data on employers from SEVIS available to the public.

As discussed above, data on the top employers of F-1 nonimmigrants in OPT, STEM-OPT, and CPT were previously published, but the 2021 data update from the Biden administration did not publish information on the employers using these programs, and individual-level microdata on OPT or CPT have never been published (but have been acquired by FOIA request). As multiple investigative reports have revealed,15 OPT is a de facto work visa program that operates with virtually no rules to protect nonimmigrant workers or U.S. labor standards, and with no oversight from DOL, resulting in migrant workers being exploited and “in virtual servitude.”16 In order to protect OPT workers and U.S. labor standards, ICE should restart the practice of publishing the top employers in OPT, and begin making public the microdata on OPT employers, so they can be inspected by the public without needing to file a FOIA request.

6. ICE should make J-1 microdata from SEVIS available to the public.

The J-1 nonimmigrant visa has roughly 14 different programs, and technically exists for the purpose of facilitating cultural, educational, and scientific exchanges, but many of the programs authorize employment. There have been numerous cases of worker abuses—like wage theft and substandard housing—as well as human trafficking, including J-1 workers being forced into the sex industry. Some of these cases were so extreme that they were front page news in major newspapers like the NY Times.17 One of the reasons these cases are so common is because J-1 is managed by the State Department, an agency that has no expertise or mandate in labor standards enforcement.

However, ICE controls the data on J-1 employers and workers in the SEVIS database, in partnership with the State Department. In order to promote transparency, protect migrant workers, and U.S. labor standards, ICE should begin publishing those data, so that the public and advocates can improve and target efforts to protect J-1 workers. Only one FOIA that we know of has been successful—and the one year of data that were made available contained useful information that was used to produce a report on how to protect J-1 workers and reform the J-1 Summer Work Travel program.18

III. IMPROVING DATA TRANSPARENCY AT DHS WOULD SAVE MONEY AND INCREASE EFFICIENCY AND REDUCE STAFF TIME SPENT ON FOIA REQUESTS AND LITIGATION.

In the absence of transparency when it comes to data about nonimmigrant work visa programs, advocates are forced to request data from DHS through FOIA requests to the appropriate agency (or subagency) and hope that their request is granted. The lengthy, inefficient FOIA process is burdensome for requestors and government agencies alike. The processing time and uncertainty surrounding FOIA requests present substantial obstacles for advocates, researchers, journalists, and other stakeholders seeking information about these public programs. At USCIS and other agencies, for example, responses to FOIA requests can sometimes take an entire year or more to process, and the requests might still be denied. These delays and the possibility of denial make it difficult for advocates to put the requested information to good use within a reasonable amount of time.

The FOIA process often ends up being very expensive for DHS as well. Processing FOIA requests requires the full-time effort of hundreds of employees. At DHS in 2017, the equivalent of 552 full-time employees were dedicated to receiving, processing, and releasing FOIA requests. 19 Inevitably, the government rejects some portion of the FOIA requests.

In order to obtain information requested, some portion of FOIA petitioners file suit against the agency that denied that request. Defending those FOIA lawsuits is an expensive proposition. In the case of the DHS, a report is released every year detailing the costs of litigating FOIA lawsuits. In 2017, FOIA litigation cost the DHS nearly $3.4 million dollars. Together with general administration costs of FOIA requests, the DHS spent $56.6 million in 2017.20 The FOIA process as currently constructed is incredibly expensive for the federal government.

Even when FOIA requests are granted, there may be problems with the data released by the government that make the information less than useful. For example, the federal agency may redact key bits of information, claiming a privacy exemption, or some of the data may appear unreliable, inconsistent, or difficult to interpret. The record-keeping practices of the agency may also be an obstacle. One example is USCIS, which stores much of the information it collects on nonimmigrant work visas on paper files, rather than electronically. As a result, even when USCIS grants a FOIA request, it may only be able to release the parts that have been transferred manually to an electronic format.

As a result, DHS should electronically collect petition data electronically and allow electronic filing (as discussed above) and publish the individual level petition microdata regularly, rather than processing multiple FOIA requests and spending time and resources litigating those requests.

IV. USCIS SHOULD USE ALL AVAILABLE AVENUES TO STREAMLINE RENEWAL AND EXTENSION OF NONIMMIGRANT STATUS AND EADs AS AN EMERGENCY MEASURE BECAUSE OF THE PROCESSING BACKLOG, SO THAT NONIMMIGRANTS AND SPOUSES DO NOT LOSE THEIR JOBS.

The processing backlog at USCIS, which has been announced by USCIS and reported on by multiple news outlets, has already endangered the ability of many nonimmigrant workers and their spouses—who are authorized to be employed with EADs—as well as DACA recipients and other EAD applicants, from maintaining their employment status in their current jobs, due to the inability of USCIS to process visa and EAD renewals in a timely fashion.21 While recent actions have been taken to speed up the process by suspending the biometrics submission requirement for certain applicants filing Form I-539, Application To Extend/Change Nonimmigrant Status, nevertheless many nonimmigrants and other migrants are reliant on having valid a visa or EAD status to work, and will thus be out of work and unable to procure new employment, and many will even be out of status, rendering them removable by immigration enforcement. Those in nonimmigrant status were recruited to work by U.S. employers and may fall out of status through no fault of their own, thus, USCIS has an obligation to ensure they are able to continue earning money to survive during their time in the United States.

To protect the ability of nonimmigrants and those in other statuses who rely on EADs to work and continue earning a living and residing in the United States without fear, USCIS should use its existing legal authority to the fullest extent possible in order to automatically renew nonimmigrant statues and EADs, or in the alternative, extend the filing deadlines for nonimmigrant statues and EADs for one year, or until USCIS has managed to cope with the current backlog (whichever is longer). Similar measures were proposed in the HEROES Act legislation in 2020;22 a piece of legislation which President Biden expressed support for. While the HEROES Act did not become law, USCIS has significant authority to take at least some measures to help keep visas and EADs from expiring because of the backlog.

V. USCIS SHOULD RESCIND THE TRUMP ADMINISTRATION’S REGULATIONS THAT DOUBLED EAD WAIT TIMES FOR ASYLUM APPLICANTS AND ISSUE NEW REGULATIONS IMPLEMENTING THE PREVIOUS RULES.

In 2019 and 2020, the Trump administration proposed and finalized rules that would (1) double the amount of time an asylum applicant must wait before they become eligible to receive a work permit, from 180 days to 365 days, and (2) removed a regulatory provision that required USCIS to grant or deny an initial EAD application within 30 days after an asylum applicant files the initial Form I-765, Application for Employment Authorization.23 The result of these rules is that asylum seekers have gone from waiting six months before they can work lawfully in the United States to waiting one year—just to apply—and are then expected to endure an unknown and indefinite wait time before they are authorized to work. In the meantime, asylum seekers waiting for work authorization do not have access to the social safety net but will somehow need to find food and clothing for themselves and their families, plus a roof to put over their heads.

The few estimates DHS has provided in the proposed rule suggest that the financial hardships to asylum applicants due to loss of income will be significant—and their income will not be easily replaced, if at all, leaving asylum applicants desperate for food and basic necessities, and perhaps even homeless on American streets. It should not be U.S. policy to force persons fleeing persecution into the informal labor market in order to survive. Therefore, USCIS should take measures to make lawful employment more readily available to asylum applicants, by rescinding the 2020 regulations requiring a 365-day wait period and removing the 30-day processing timeline, issuing new regulations that ensure asylum applicants in most cases do not have to wait longer than 180 days to receive work authorization.

VI. USCIS SHOULD WORK WITH OTHER AGENCIES TO CREATE AN INTERAGENCY PROCESS FOR MIGRANT WORKERS TO COME FORWARD AND REQUEST AFFIRMATIVE RELIEF IF THEY ARE IN LABOR DISPUTES.

We encourage USCIS to work with ICE and other subagencies within DHS, and DOL, in an interagency effort to protect the rights of all migrant workers, regardless of immigration status. This should begin with the creation of a process by which any worker who is involved in a labor dispute can access affirmative relief so that immigration status can never be used to undermine the rights of migrant workers and their coworkers. Such an interagency process should also include a review of current rules and new rulemaking where necessary to better protect workers’ rights.

This process would benefit both unauthorized immigrant workers and migrants employed through on temporary work visa programs. The former can be threatened with deportation by employers and the latter are at risk for exploitation because employers control their ability to live and work in the United States. This dynamic also means that individuals’ immigration statuses can be used against them in retaliation for blowing the whistle on workplace crimes. When this happens, unscrupulous employers lower standards for all working people, including U.S. workers.

We also urge USCIS to also join in a broader interagency effort similar to the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment, and Immigration Laws that existed at the end of the Obama Administration. An interagency working group will improve communications between the labor, employment, and immigration agencies, and also send a signal to low-road employers that immigration laws cannot be used to threaten or intimidate employees for exercising their workplace rights.

VII. USCIS SHOULD PROMULGATE A NEW REGULATION ESTABLISHING A PREFERENCE ALLOCATION SYSTEM FOR H-1B PETITIONS BY PREVAILING WAGE LEVEL.

USCIS has the authority to determine how the government selects H-1B petitions subject to the annual numerical limit. The statute requires the agency to select petitions in the order in which they are filed, which is practically impossible when USCIS receives more petitions than available visas over the course of a few days. When this occurs currently, USCIS uses a random lottery process that was never formalized through the regulatory process.

We urge USCIS to reissue, through proper notice and comment, a new regulation that adopts a petition allocation process that is more formalized and transparent, and that prioritizes the petitions of employers paying the highest wages, rather than the existing method of an ad hoc random lottery.24 Establishing a wage-based allocation system will provide certainty to employers, while increasing the number of international graduates from U.S. colleges and universities hired on H- 1B visas since education, experience, and time in the U.S. should command higher salaries. At the same time, a wage-based allocation system will advantage direct-hire employers, including start-ups and small businesses, over the large outsourcers whose business model is built on gaming the random lottery to increase their chances of “winning” large shares of H-1B visas every year.25

VIII. USCIS SHOULD UPDATE THE L-1 CLASSIFICATION WITH A PREVAILING WAGE REGULATION OR NEW GUIDANCE ON APPROPRIATE COMMENSURATE WAGES FOR L-1 NONIMMIGRANT WORKERS.

Unfortunately, the L-1 nonimmigrant visa has not been adequately regulated since its creation in 1970, despite being a large visa programs where the biggest employers of L-1 workers are also some of the biggest H-1B employers, which include major U.S. tech firms and outsourcing firms.26 However, the L-1 program has fewer rules and no formal oversight from DOL. As a result, multinational employers have been able to take advantage of inadequate regulatory guidance, oversight, and enforcement in the L-1 visa program. Reports,27 government audits,28 and congressional testimony29 have criticized many flaws and weaknesses in the L-1 program, and media reports have documented cases of fraud and abuse.30

But the most damaging programmatic flaw in the L-1 program is that it lacks a minimum or prevailing wage requirement for incoming L-1 nonimmigrant workers. While USCIS a few years ago updated its guidance with respect to the issuance of L-1B visas, there are no rules that prevent L-1 workers from being underpaid and that protect U.S. wage standards. This is the case despite the fact that news reports and DOL investigations have revealed cases of U.S. workers lawfully being laid off and being replaced by L-1 workers, but not before being required to train the L-1 on how to do their former job,31 as well as a Silicon Valley technology company in Fremont, California, that was paying less than $2 an hour to skilled migrant workers from India on L-1 visas who were working up to 122 hours per week installing computers.32

The most impactful action USCIS could take to improve the L-1 visa would be to issue an L-1 minimum wage regulation, or new interpretive guidance on the minimum allowable wage levels that petitioning employers must pay their L-1 employees. A new L-1 wage regulation could be quite simple, for example requiring that employers pay their L-1 workers a specified minimum wage: Requiring that L-1 workers be paid the local median wage, according to occupation and job location, would be the easiest way to do this, and employers could rely on existing public databases like the Foreign Labor Certification Data Center database, which provides the employers of H-1B and H-2B workers with the applicable prevailing wage they must pay their nonimmigrant workers. (An L-1 wage rule requiring that workers be paid at least the local median wage has been proposed in bipartisan legislation, but USCIS has the authority to promulgate a regulation that would create a similar rule.)33

While a regulatory approach would be preferable because it would provide certainty for petitioner/employers and promote consistency in adjudications, in the alternative, USCIS could issue new interpretive guidance instructing its adjudicators to use annual salary or hourly wage levels that petitioners promise to pay L-1 workers as a significant factor in determining whether the worker will be employed in an executive, managerial, or specialized knowledge capacity.

IX. DHS SHOULD DO A COMPREHENSIVE REVIEW OF REGULATIONS AND GUIDANCE WITH THE GOAL OF PROTECTING WORKERS AND SAFEGUARDING U.S. LABOR STANDARDS.

We also encourage DHS to work across subagencies and with other federal agencies to ensure that wages and labor protections for those on nonimmigrant visas—and other workers who are employed through EADs issued by DHS—are as strong as possible and are being enforced. This includes creating and updating the computation of prevailing wage levels for various visa programs and categories within visa programs; prioritizing wages when allocating visas in oversubscribed visa programs; prohibiting exorbitant recruiter fees and abusive labor contracts; and creating more avenues for workers to be able to change jobs and employers on their own, as well as self-petition for work authorization and legal permanent residence, without having to rely on their employers.

Sincerely,

Daniel Costa
Economic Policy Institute

Jeremy McLean
Justice in Motion

Cathleen Caron
Justice in Motion

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Endnotes

1. See, for example, Jeremy McLean, The Case for Transparency: Using Data to Combat Human Trafficking Under Temporary Foreign Worker Visas, Justice in Motion, September 2020; Sara Crowe, Human Trafficking on Temporary Work Visas: A Data Analysis 2015-2017, Polaris, June 1, 2018.

2. Laura Francis, “Paperless Intake Is Immigration Agency Director’s Top Priority,” Bloomberg Law, October 17, 2018.

3. See discussion of truckloads of paper applications for temporary work visas arriving at USCIS, in Miriam Jordan, “Visa Applications Pour in by Truckload Before Door Slams Shut,” New York Times, April 3, 2017.

4. See for example, Daniel Costa, Temporary work visa programs and the need for reform: A briefing on program frameworks, policy issues and fixes, and the impact of COVID-19, Economic Policy Institute, February 3, 2021.

5. Annie Correal, “Hindu Sect Is Accused of Using Forced Labor to Build N.J. Temple,” NY Times, May 11, 2021.

6. Zack Kopplin, “Au Pairs Come To The U.S. Seeking Cultural Exchange, But The State Department Often Fails To Protect Them,” Huffington Post, July 31, 2020.

7. Rep. Lois Frankel, “Frankel, Deutch, Blumenthal, & Cruz Introduce Bipartisan, Bicameral Bill to Bring Transparency to Temporary Worker Visa Programs & Combat Human Trafficking” (press release), July 23, 2019; Visa Transparency Anti-Trafficking Act of 2019, H.R. 3881, 116th Cong. (2019); Visa Transparency Anti-Trafficking Act of 2019, S. 2224, 116th Cong. (2019).

8. Obama White House, “Transparency and Open Government Memorandum for the Heads of Executive Departments and Agencies,” January 21, 2009.

9. Genevieve Douglas, “Visa Data Changes Coming With New Biden Immigration Priorities,” Bloomberg Law, May 12, 2021.

10. USCIS, “Buy American and Hire American: Putting American Workers First,” [data hosting page], archived content, https://www.uscis.gov/archive/buy-american-and-hire-american-putting-american-workers-first.

11. USCIS, Reading Room, https://www.uscis.gov/archive/uscis-electronic-reading-room-opens-the-door-to-transparency.

12. See USCIS Reading Room, “I-129 Approvals for FY 2019,” https://www.uscis.gov/sites/default/files/document/data/I-129_Approvals_for_FY_2019.xlsx.

13. U.S. Government Accountability Office, H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, GAO-15-154, Published: March 06, 2015, [Reissued on May 30, 2017].

14. U.S. Government Accountability Office, H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, GAO-15-154, Published: March 06, 2015, [Reissued on May 30, 2017], at 22-24. (Emphasis added.)

15. Rachel Rosenthal, “The STEM Graduate System Is Broken. Here’s How to Fix It.” Bloomberg Opinion, March 10, 2021; Nikhil Swaminathan, “Inside the growing guest worker program trapping Indian students in virtual servitude,” Mother Jones, September/October 2017 issue.

16. Nikhil Swaminathan, “Inside the growing guest worker program trapping Indian students in virtual servitude,” Mother Jones, September/October 2017 issue.

17. See for example, Julia Preston, “Foreign Students in Work Visa Program Stage Walkout at Plant,” NY Times, August 11, 2011.

18. International Labor Recruitment Working Group, Shining a light on summer work: A first look at the employers using the J-1 Summer Work Travel visa, July 30, 2019 [the International Labor Recruitment Working Group has been renamed Migration that Works].

19. Jeremy McLean, The Case for Transparency: Using Data to Combat Human Trafficking Under Temporary Foreign Worker Visas, Justice in Motion, September 2020.

20. Department of Homeland Security, 2017 Chief Freedom of Information Act Officer Report to the Attorney General of the United States and the Director of the Office of Government Information Services, February 2018.

21. See for example, Michelle Hackman, “Work-Permit Backlog for Immigrant Spouses Takes Toll on Professional Women,” Wall Street Journal, April 17, 2021.

22. Tanvi Misra, “House aid package contains key immigration measures,” Roll Call, May 12, 2020.

23. See Department of Homeland Security, Asylum Application, Interview, and Employment Authorization for Applicants (Final Rule), 85 FR 38532, June 26, 2020; and Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications, 85 FR 37502, June 22, 2020.

24. See previous public comment submitted by EPI: Daniel Costa and Ron Hira, “EPI comments on USCIS preference allocation system for H-1B visas by prevailing wage level,” Economic Policy Institute, December 2, 2020.

25. Julia Preston, “Large Companies Game H-1B Visa Program, Costing the U.S. Jobs,” New York Times, November 10, 2015.

26. See for example, Ron Hira and Daniel Costa, “The H-1B visa program remains the “outsourcing visa”: More than half of the top 30 H-1B employers were outsourcing firms,” Working Economics blog (Economic Policy Institute), March 31, 2021; USCIS, “Approved L-1 Petitions by Employer Fiscal Year 2019,” Buy American and Hire American: Putting American Workers First,” [data hosting page], archived content, https://www.uscis.gov/archive/buy-american-and-hire-american-putting-american-workers-first.

27. See for example, Gaming the System 2012: Guest Worker Visa Programs and Professional and Technical Workers in the U.S., Department of Professional Employees, AFL-CIO (2012).

28. See for example, Department of Homeland Security (DHS), Office of Inspector General (OIG), Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program (OIG-06-22), January 2006.

29. See for example, “The L-1 Visa and American Interests in the 21st Century Global Economy,” Hearing before the Subcommittee on Immigration, Border Security and Citizenship, July 29, 2003.

30. Brian Grow, “A Mainframe-Size Visa Loophole,” Bloomberg Business, March 5, 2003.

31. Bootie Cosgrove-Matherap, “Training Your Own Replacement” Associated Press, August 14, 2003.

32. See, Monte Francis, “Fremont Tech Company Paid Workers $1.21 an Hour: U.S. Dept. of Labor,” NBC Bay Area, Oct. 22, 2014. See also George Avalos, “Workers Paid $1.21 an Hour to Install Fremont Tech Company’s Computers,” Mercury News, Oct. 22, 2014; updated Aug. 12, 2016. L-1 visa status confirmed in an email from George Avalos of Mercury News, Oct. 23, 2014.

33. Senator Chuck Grassley, “Bipartisan Group Of Lawmakers Propose Reforms To Skilled Non-Immigrant Visa Programs To Protect American Workers,” Press Release, May 22, 2020.