State Department Denies Substantial Percentage of Employer-Sponsored Immigrant Visas

BY LESLIE DELLON

Surprising data recently revealed that consular officers denied applicants for employer-sponsored immigrant visas at a far higher rate than U.S. Citizenship and Immigration Services (USCIS) officers denied green cards to employer-sponsored applicants. Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employersponsored immigrants while the average denial rate by consular officers was 63%. The Cato Institute has identified a disturbing difference that disadvantages employer-sponsored immigrants that apply abroad—and which, to our knowledge, has not been raised before. Our analysis of the findings and conclusions follows. By “employer-sponsored,” the Cato Institute means the employment-based (EB) second preference category for advanced degree professionals or persons of exceptional ability and the EB third preference category for skilled workers, professionals, or “other workers.” In these two categories (unless the noncitizen qualifies for an EB-2 national interest waiver), a noncitizen must have a job offer from a U.S. employer. The sponsoring employer first must have recruited for U.S. workers and received a certification from the Department of Labor (DOL) that employing the noncitizen in the job offered will not adversely affect the wages and working conditions of similarly-employed U.S. workers. Next, the sponsoring employer must receive approval from USCIS that the noncitizen is qualified for the employment-based preference category. After USCIS’ approval of the employer’s petition, and if the noncitizen is in lawful nonimmigrant status in the United States, among other requirements, they may become a U.S. permanent resident upon USCIS approval of their application to adjust status. Otherwise, the noncitizen must have an immigrant visa issued by a consular officer at a U.S. Embassy or consulate abroad and then be admitted to the United States as a permanent resident. For the consular officer denials, the Cato Institute used the numbers for immigrant visa ineligibility as to labor certification in the Department of State Visa Office’s annual reports for Fiscal Years 1992 through 2020—with permanent labor certification only being required for the EB second (without national interest waiver) and third preferences. The USCIS numbers the Cato Institute obtained have a broader scope: including any reason for denial and the EB first

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Immigrant Visas/ continued from page 16 category (for persons of extraordinary ability, outstanding professors/researchers, and intracompany managers and executives), which has no labor certification requirement. Yet, the consular officer denials still far exceed USCIS denials. According to the Cato Institute, consular officer denials “shot up in [Fiscal Year] 1995 and stayed extraordinarily high through the present.” In Fiscal Years 2019 and 2020, consular officers denied 61% of employer-sponsored applicants. Yet in 2021, USCIS denied only 4%. As the Cato Institute notes, no explanations are provided for the consular officer denials. A review of the Foreign Affairs Manual (FAM), which contains State Department policies and procedures, suggests the following possibilities. The FAM impresses on the consular officer that they, and not DOL or USCIS, assess the applicant in person and “have the responsibility” to resolve any doubt about whether the applicant has the qualifications for the job. Frequently, the consular officer will be interviewing the applicant years after DOL issued the labor certification. The consular officer may question whether the applicant still intends to work for the sponsoring employer in the job offered, even though the FAM states that the officer should have “objective reasons” to believe the applicant will not comply with the labor certification. The Cato Institute questioned why the FAM would list as a negative factor evidence that the applicant does not have prior work experience in the same type of business as the job offered. As stated in the blog, “The State Department should not be denying people for seeking different types of jobs than their jobs in their home countries.” While the disparity in denial rates the Cato Institute identifies is disturbing, the blog makes related claims that are questionable. The Cato Institute claims that the Departments of State, Homeland Security, and Labor “are directly incentivizing employers and immigrants to unnecessarily use the temporary work visa system.” But immigrants are not avoiding consular processing because of low approval rates—the Cato Institute says, “no one has previously reported on it.” There are other disincentives to consular processing. The backlogs are enormous. Many immigrant visa applicants must first submit documentation to the U.S.-based National Visa Center—and only when they are “documentarily qualified” will the U.S. Embassy or Consulate schedule an interview. The National Visa Center’s Immigrant Visa Center Backlog Report states that 426,486 eligible immigrant visa applicants (family- and employment-based) are still waiting to have interviews scheduled after June 2022 appointment slots have been filled. Aside from the delay, with the additional risk and expense inherent in traveling abroad, why would noncitizens who are already living in the United States risk the trip? The blog also claims this “takes a temporary visa cap spot away from some worker for whom a temporary path makes more sense.” But most employment-based immigrants apply to adjust status to permanent resident in the United States because they are working in the United States in temporary (nonimmigrant) categories Congress has provided. Congress specifically authorized H-1B (specialty occupation) workers—a category that has a “cap” unless an exemption is available—to work temporarily in the United States when they also may intend to become permanent residents. Congress, not the agencies, is responsible for which temporary visa categories are available. Congress, not the agencies, limits the number of immigrant visas available per year, and further limits the percentage per country of birth. Congress has not reconsidered these limits for over thirty years. There is no reason why U.S. employers should forego the opportunity to hire qualified noncitizens, and noncitizens forego the opportunity to work in the United States while navigating the green card process.l

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18 A Border Patrol Agent Assaulted a Citizen in His Own Home. The Supreme Court’s Ruling Lets the Agent Off.

BY AMERICAN IMMIGRATION COUNCIL STAFF

America’s economic success is built on the world’s best and brightest coming to our shores bringing ingenuity, creativity, and determination. From Wall Street to Main Street, businesses started by immigrants have helped the U.S. economy enormously. The Supreme Court issued a decision on Wednesday barring a civil rights lawsuit against a U.S. Border Patrol agent for reportedly entering the property of a U.S. citizen without a warrant and assaulting him. The ruling in Egbert v. Boule emboldens Border Patrol agents to act without consequence, even if their actions may violate the Constitution. Mr. Boule was the owner of a bed and breakfast near the U.S.-Canada border. According to the lawsuit, in 2014, Border Patrol Agent Egbert entered the property to question one of Mr. Boule’s international guests. When Mr. Boule asked Agent Egbert to leave, Agent Egbert threw Mr. Boule to the ground. After Mr. Boule filed a complaint with Border Patrol about his excessive use of force, Agent Egbert allegedly retaliated by initiating investigations into Mr. Boule’s business. The results of Border Patrol’s investigation into the 2014 incident showed that Agent Egbert “demonstrated lack of integrity.” Even though the Border Patrol found Agent Egbert acted inappropriately, Mr. Boule was not eligible to collect any monetary damages from him. For this reason, after pursuing other legal options, Mr. Boule filed a lawsuit relying on a 1971 Supreme Court case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Congress has never passed a law that allows people to sue federal agents for money for violating the Constitution. However, a successful lawsuit based on the Bivens case allows an individual to hold a federal government official accountable for violating their constitutional rights and collect monetary damages for the harm they suffered. It is also intended to discourage officers from breaking the law in the future. In this case, Mr. Boule argued that Agent Egbert violated his First and Fourth Amendment rights. In its opinion, the Supreme Court held that Mr. Boule could not bring either of his Bivens‘ claims against Agent Egbert. With respect to the Fourth Amendment claim, the court ruled against Mr. Boule after finding Congress should decide whether damages actions were appropriate. The justices came to this conclusion by answering one central question: “whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’” According to the Court, a lawsuit against a Border Patrol agent necessarily implicates national security concerns. Because of that, only Congress could allow such a lawsuit. The Court came to this conclusion even though this case involved a low-level officer engaged in routine law enforcement activity against a U.S. citizen on U.S. soil on his own property. The Court also found a Bivens remedy inappropriate because U.S. Border Patrol has a grievance process. The Court said it did not matter that this process did not award Mr. Boule monetary damages, that it could not be appealed, or, as the dissent points out, that it offers “no meaningful protection of the constitutional interests at stake.” Finally, the Court declined to extend a Bivens remedy to Mr. Boule’s First Amendment retaliation claim, stating that it could significantly expand litigation against federal agents. The Supreme Court’s decision likely makes it virtually impossible to bring a Bivens action against Border Patrol agents in the future. This removes an important tool for holding that agency –one known for abuse and misconduct –accountable. And Border Patrol has proven unwilling to police itself. According to a study, over 95% of disciplinary actions resulting from complaints result in no consequences against the agent. By ruling against a Bivens action, the Court leaves individuals like Mr. Boule without any options to seek damages for the violations against them.l