Have we won the battle on INA 221(g) and are we heading to a fair immigration reform with the STEM Jobs Act?

By Shah Peerally

www.PeerallyLaw.com

In the past few years starting from the famous Neufeld Memo 2010  to the FOIA by ILRC, we have seen that the United States more specifically the Department of State (“DOS”)  wage a huge battle with businesses when it comes to allowing them to bring skilled labor from abroad.  In many instances, although the Department of Homeland Security (“DHS”)  approved cases such as the H1B, H4 or L visas, the Department of State was still denying many applications on INA 221g.  On our side, we have actually waged a campaign to fight this unfair application of the INA 221g, including our letter to President Obama but also our short fiction film “The Lost Dream” depicting the dramatic results of denying a visa to a foreign worker.

Many big companies including Intuit, Boeing, and Catepillar have actually written to the President Obama denouncing the practices of the Department of State.  This practice has actually been going on for a while especially against IT consulting firms.  Now, it seems the tides are turning and the Administration has now softened its instance on the subject allowing some Indian nationals to easily obtain their visas.  The government has even introduced a system of Interview waiver program of certain visas.  Under this current Interview Waiver Program, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:

  • Business/Tourism (B1 and/or B2);
    Dependent (J2, H4, L2)
    Transit (C) and/or Crew Member (D) – including C1/D.
    Children applying before their 7th birthday traveling on any visa class
    Applicants applying on or after their 80th birthday traveling on any visa class
    Under the expanded program, the following Indian applicants may also be considered for streamlined processing:
  • Children applying before their 14th birthday traveling on any visa class
    Students returning to attend the same school and same program
    Temporary workers on H1-B visas
    Temporary workers on Individual L1-A or Individual L1-B visas
    The renewal application must be within the same classification as the previous visa. If the previous visa is annotated with the words “clearance received,” that applicant is not eligible for a waiver of a personal interview.

It appears the Department of State is actually making an effort to clear the “INA 221(g) Nightmare”.  The question is whether we are going to see a better process?  So far, we do not have enough information to know whether this system is or will be working properly.

While we applaud this move, we still believe that there are much more to be done in this area. For example we need to see an increase in the US visas for highly skilled individuals hoping to accomplish the American dream and assist the US in moving forward in the 21st Century. Most studies have shown that skilled immigrants not only help in the growth but in fact, create the growth.

Today  in another good news, the House of Representatives passed the STEM Jobs Act 2012.  Now the bill is heading to the Senate.

The “STEM Jobs Act of 2012” would provide up to 55,000 permanent resident “green cards” each year to the top foreign graduates of U.S. universities with doctoral degrees in the “STEM” fields of science, technology, engineering, and mathematics, with any remaining green cards being made available to such graduates with master’s degrees in STEM fields.  Note that the STEM Jobs Act 2012 will also reduce the waiting time for Permanent Resident spouses to be in the United States to only one year.  Right now the waiting time is between 2 to 4 years.  Our hope is that the Senate will allow the bill as it stands  or propose a better version and ultimately will be signed into law by the President Obama.

We hope that the government will realize that curtailing the ability of companies in hiring the cream of the crop of the world not only goes against the American values but also against our ability to regain our leadership in the world.  In a competitive world, America’s survival depends on its ability innovate and lead. It is also an unfair fact for many to wait years to see their spouses in the United States.  By allowing the best in Science, Technology, Engineering and Mathematics (STEM) to stay in America and bringing their spouses along in a shorter period of time,  America will definitely reestablish its leadership in the world!

For this reason, we believe a good immigration reform should not only include a good reform on how to allow undocumented to be legal in this country but also to allow the skilled foreign nationals to achieve a path to residency and ultimately citizenship. As for the INA 221(g), we sincerely hope the nightmare is over.

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Shah Peerally is an attorney licensed in California practicing immigration law and debt settlement. He has featured as an expert legal analyst for many TV networks such as NDTV, Times Now and Sitarree TV. Articles about Shah Peerally and his work have appeared on newspapers such as San Jose Mercury News, Oakland Tribune, US Fiji Times, Mauritius Le Quotidien, Movers & Shakers and other prominent international newspapers. His work has been commended by Congress women Nancy Pelosi and Barbara Lee. He has a weekly radio show on KLOK 1170AM and frequently participates in legal clinics in churches, temples and mosques. His law group, Shah Peerally Law Group, has represented clients all over the United States constantly dealing with the United States Citizenship and Immigration Services (USCIS), Immigration and Custom Enforcement(ICE) and CBP (Customs Border Patrol (CBP) under the Department of Homeland Security (DHS). This department was formerly known as the Immigration and Nationality Services (INS).