AILA Testimony on the Continued Impact of the Visa Approval Backlogs on Small Business

Mr. Chairman and distinguished Members of the Subcommittee, I am Palma R. Yanni, President of the American Immigration Lawyers Association (AILA). I am honored to be here today representing AILA, the immigration bar association of more than 8,000 attorneys who practice immigration law. Founded in 1946, the association is a nonpartisan, nonprofit organization and is an affiliated organization of the American Bar Association (ABA).

AILA takes a very broad view on immigration matters because our member attorneys represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives to lawfully enter and reside in the United States. AILA members also represent thousands of U.S. businesses and industries that sponsor highly skilled foreign professionals seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers, on a permanent basis. Our members also represent asylum seekers, often on a pro bono basis, as well as athletes, entertainers, and foreign students.

AILA appreciates this opportunity to update the subcommittee on the ever-burgeoning backlog in the visa process. Since I last talked to this subcommittee in June, the situation has further deteriorated. Name the category of visa and I can describe to you severe delays or other situations that hamstring or defeat the purpose of having that visa in the first place. Many of these situations have a disproportionate impact on small business.

As I indicated in June, when we talk about visa issuance, we usually mean the process by which a U.S. consulate or embassy abroad issues a document that enables a person to apply for admission into the United States for a particular purpose. The delays in that visa issuance process alone can be monumental. But, in many cases, visas for individuals critical to a small business cannot be issued until the Department of Homeland Security's Citizenship and Immigration Services (USCIS) arm, which used to be the Immigration and Naturalization Service (INS), has approved an underlying petition.

Petitions at USCIS

Visa problems for key employees and consultants of small businesses begin long before the individual applies for a visa at a U.S. consulate, and continue after they arrive in the United States. Usually, these problems are centered at the USCIS. While that agency has yet to release actual figures, despite numerous requests, conversations with USCIS employees and the experiences of AILA members indicate a marked increase over the past two years in the number of cases denied or subjected to lengthy demands for additional documentation not required by the regulations. There is good reason to believe that some 20 to 25 percent of employment-based cases, a large number of which are meritorious and would have been readily approved not long ago, are subjected to these documentation demands or are denied. And, our members' experiences tell us that most of these cases are for employers that would be classified as small businesses.

These demands can run many pages in length, and may ask for dozens of separate pieces of often difficult-to-obtain documentation not required by regulation. We have seen requests for incorporation documents, copies of wire transfers, confidential contracts, several years' worth of bank statements, payroll records and resumes for employees not related to the petition, and pages of other such documentation. These kinds of requests are considered almost inevitable for small businesses. Very often, these requests and denials are for people seeking extensions of existing visa status, where petitions were previously approved under the same facts.

The delays engendered by these documentation requests exacerbate already serious backlogs and delays in processing. For example, during the summer, regular processing of H-1Bs was running as long as eight months-in those increasingly rare cases in which additional documentation was not requested. If documentation was requested, several months could be added to the processing time.

As this subcommittee's own website reflects, small businesses represent more than 99 percent of all employers and produce two-thirds to three-quarters of all the net new jobs. The people who join these employers from abroad usually are sought because they bring a unique expertise in markets or technology to help these businesses expand and ultimately fuel growth in jobs for American workers. Unfortunately, the USCIS does not appear to recognize the crucial role small businesses play in the U.S. economy, and places extremely high burdens on small businesses.

As you may know, H-1B visas are limited to 65,000 per year. Visa numbers are distributed in the order in which the USCIS petitions are approved. Because small businesses tend to receive more requests for additional documentation than do larger companies, small business petitions that are filed at the same time as those by larger businesses will take several months longer to be approved (if they are approved at all). Thus, larger businesses have a better chance of receiving one of the limited H-1B visa numbers before they run out.

The disproportionate pain felt by small businesses may increase under a proposal under development at the USCIS. The USCIS is putting the finishing touches on a "pre-certification" program, by which qualifying companies-which by the terms of the program would exclude small businesses-may obtain a blanket certification that listed job positions within the company meet H-1B requirements. Then, when a candidate is identified, the company can use this pre-certification to ensure that it does not receive a demand for additional documentation on that issue (which happens to be the issue for which most such demands are sent by USCIS). The result is that large companies-the only ones allowed to participate in the program-are placed in an even better position to use the limited numbers of H-1Bs, and small businesses, which will continue to receive these demands, will most likely to lose out in this "race" for H-1B numbers.

The problems faced by small businesses in this process have very real-world consequences. Hospitals and nursing homes struggle without needed health care workers. Projects are delayed or cancelled because needed scientists or business experts cannot obtain approval on a timely basis, or at all. Dreams by U.S. companies of reaching foreign markets are abandoned because they cannot obtain the needed knowledge of those markets. Foreign companies wishing to open or expand job-creating operations in the United States must abandon those plans because USCIS has decided that a small company cannot "need" a manager or executive. Small businesses, the drivers of the American economy, are being hurt by a "culture of no" permeating the USCIS.

Delays at the Consulates

The USCIS is not the only source of problems. Severe delays continue to hamper the visa issuance process, with serious consequences for businesses, families, schools and others in the United States. The State Department saw a 15% decrease in the number of non-immigrant (i.e., not permanent) visa applications from 2002 to 2003. People simply do not want to come to the United States, in large part due to the delays and roadblocks that are now a routine part of the visa process. The negative impact on the sectors of our economy, including small business, that deal with tourism is significant.

The negative impacts are visible elsewhere. For instance, the American Institute of Physics indicates that schools offering graduate physics programs have experienced a decline of 7% since 2002 in the number of students from abroad. This is a worsened situation from the year immediately following 9/11, when foreign student enrollment declined 3%. These programs had suffered significantly declining enrollments of U.S. students since 1970, but were saved by an increase in enrollment by students from abroad, to the point that 55% of graduated-level students enrolled in U.S. physical science programs in 2000-2001 were from abroad. Thus, this decline in foreign student enrollment is of major significance. The Institute attributes this decline largely to problems in obtaining visas.

As both the American Institute of Physics and the National Academies of Science not, these students and international scholars are essential to continue the United States' advances in scientific research and technological development. And a large percentage of developing technologies has come from small businesses. To quote from a National Academies of Science position paper that I have attached to my testimony:

Scientific and engineering research has become a truly global enterprise. International conferences, collaborative research projects, and the shared use of large experimental facilities are essential for progress at the frontiers of these areas. If we allow visa restrictions to stop international collaborations at our experimental facilities, then these facilities will cease to attract international support. Moreover, our scientists and engineers will no longer enjoy reciprocal access to important facilities abroad. And if we continue to exclude foreign researchers from conferences held in the United States, then those meetings may cease to take place in this country in the future, depriving many American scientists of the opportunity to participate in them.

In short, the U.S. scientific, engineering, and health communities cannot hope to maintain their present position of international leadership if they become isolated from the rest of the world.

Security checks account for some of the more dramatic delays in visa issuance, as 4-month waits while the State Department seeks a reply from other agencies on security inquiries have become routine, and much lengthier waits are no longer surprising. Few would argue that security scrutiny is unnecessary. But the lack of attention to, and reasonable speed in completing, these checks is incomprehensible.

Most security checks turn out to be nothing: either the applicant happens to have the same name as someone who is of concern, the entry in the database relates to something minor that is not a basis for denying a visa, or the entry is a mistake. But if a "hit" occurs, fingerprints must be taken and FBI clearance obtained. While some clearances come back quickly-the FBI has proven that it can turn around a check in a matter of hours-others inexplicably take weeks or months for response.

In addition, there is an array of checks triggered by a person's nationality, line of work or study, or other unknown factors. These clearances by other, often unidentified, agencies, can take many months to be acted on.

Add to the security checks the fact that the State Department now interviews, with just a handful of exceptions, all nonimmigrant visa applicants. No new personnel or facilities were added to accomplish these interviews. The result has been backups in visa processing, or elevation of form over substance. Imagine the amazement of the Australian businessman who traveled many miles, at great expense, to attend an "interview" in Sydney to obtain his intracompany transferee visa, only to spend all of 30 seconds at a window while an officer, who never even looked at him, much less ask him any questions, stamped his passport and sent him on his way. In truth, there was no need for the consular officer to do more than he did in this case-this applicant was clearly eligible for his visa and clearly no danger to the U.S. But why did we subject this applicant and this officer to this process in the first place?

Since the State Department has no system for pre-clearing visa applicants, the checks that I mentioned previously will not even begin until the visa interview has been held. Thus, for the many people subjected to these checks, we must measure the wait at the visa stage alone (AFTER their many-months wait at USCIS) in months and even years. Few small business can wait that long for a needed employee.

Examples

A few cases will illustrate the range of the problem:

• An engineer, who had worked in the U.S. for 4 years under L-1 status prior to his most recent visa application, applied in Jakarta in early 2002 to renew his L-1 visa stamp. The visa still has not been issued, with no explanation as to the reason, other than that "another agency is conducting the check" and "the visa office is very busy." After much trouble and expense to keep his projects going without him, the company finally had to transfer the engineer to an overseas office, and move projects abroad to complete them.
• A telecommunications engineer waited over a year for an H-1B visa in Saudi Arabia. Despite numerous inquiries by the company, the consular post never replied, and inquiries to Washington, DC were met with replies that the clearances had not been completed. The company and the engineer have given up.
• A businessman coming to the U.S. to act as President of a subsidiary of a British company applied for his visa in London more than a month ago. He has a very common name, and so a name check in the security database resulted in a "hit". His fingerprints were taken, and he still awaits FBI clearance of this fingerprint check. There is no indication of when the visa will be issued. In the meantime, the U.S. subsidiary is without a leader.
• A Panamanian couple in their mid-seventies, who have visited their adult daughter in the U.S. every year for the past 15 years, needed to renew their visitor visas. Apparently because they were born in Morocco, they were subjected to additional security checks, and have been waiting for several months for their visas. They missed out on spending the Jewish High holy days with their daughter because of the delay in their visas.
• A German professor who had visited the Institute for Surface and Interface Science at the University of California, Irvine, for roughly twenty five years will not come this year due to the difficulties he had obtaining a visa.

Delays at both the USCIS and the consulate mean that companies can wait over a year to obtain a simple H-1B visa (not long ago considered a two-month process). With no additional resources appropriated for the visa issuance process, with what appears to be declining resources devoted to USCIS processing, and with a "culture of no" permeating the process, obtaining a visa to the United States is increasingly looking hopeless.

These delays, combined with denials that result from the "culture of no" and uncertainty whether a visa will be issued, are having a chilling effect on many sectors of the economy, but most acutely on small businesses. The situation has become an emergency, and must be addressed at once, or business growth will be something for other countries to enjoy, leaving the United States behind.

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Appendix

Current Visa Restrictions Interfere with U.S. Science and Engineering Contributions to Important National Needs

Statement from
Bruce Alberts, President, National Academy of Sciences,
Wm. A. Wulf, President, National Academy of Engineering,
and Harvey Fineberg, President, Institute of Medicine

Dec. 13, 2002 (Revised June 13, 2003)

To make our nation safer, it is extremely important that our visa policy not only keep out foreigners who intend to do us harm, but also facilitate the acceptance of those who bring us considerable benefit. The professional visits of foreign scientists and engineers and the training of highly qualified foreign students are important for maintaining the vitality and quality of the U.S. research enterprise. This research, in turn, underlies national security and the health and welfare of both our economy and society. But recent efforts by our government to constrain the flow of international visitors in the name of national security are having serious unintended consequences for American science, engineering, and medicine. The evidence we have collected from the U.S. scientific community reveals that ongoing research collaborations have been hampered; that outstanding young scientists, engineers, and health researchers have been prevented from or delayed in entering this country; that important international conferences have been canceled or negatively impacted; and that such conferences will be moved out of the United States in the future if the situation is not corrected. Prompt action is needed.

Under current rules, consular officials send many visa applications back to the United States for sequential security clearances by several agencies, leading to long delays and backlogs. In addition, consular officials in some countries are denying visas by telling applicants -- even high-ranking officials from major research institutions -- that there is fear that they may try to remain in the United States. Consular officers who grant a visa to someone who later commits a terrorist act in the United States may be subjected to department review and serious disciplinary action. Unfortunately, there are currently no offsetting incentives for consular officers to serve the national interest by facilitating scientific exchanges.

The list of those who have been prevented from entering the United States includes scholars asked to speak at major conferences, distinguished professors invited to teach at our universities, and even foreign associates of our Academies. It includes research collaborators for U.S. laboratories whose absence not only halts projects, but also compromises commitments made in long-standing international cooperative agreements. It includes scientists from countries such as Iran and Pakistan whose exclusion from this country blocks our efforts to build allied educational and scientific institutions in those parts of the world. Perhaps most seriously, the list also includes large numbers of outstanding young graduate and postdoctoral students who contribute in many ways to the U.S. research enterprise and our economy.

In order to correct these problems as rapidly as possible, we pledge the help of the U.S. scientific community and urgently call upon the U.S. government to implement an effective and timely visa screening procedure for foreign scientists, engineers, and medical researchers, one that is consistent with the twin goals of maintaining the health of science and technology in the United States and protecting our nation's security. We ask the Department of State and its consular officials to recognize that, in addition to their paramount responsibility to deny visas to potential terrorists, the long-term security of the United States depends on admitting scholars who benefit our nation.

Possible mechanisms for streamlining the process without compromising security might include:

• Reinstating a procedure of pre-security clearance for scientists and engineers with the proper credentials;
• Instituting a special visa category for established scientists, engineers, and health researchers; and
• Involving the U.S. scientific and technical community in determining areas of particular security concern.

The U.S. research community can assist consular officials by providing appropriate documentation for those foreign citizens who are engaged in collaborations with our scientists and engineers.

An approach that welcomes qualified foreign scientists, engineers, health professionals, and students serves three general purposes in support of national goals. We outline these briefly below.

Harnessing international cooperation for counterterrorism. The National Academies have been working with foreign scientists and engineers on several efforts directly related to combating terrorism. Last September visa restrictions came within one day of forcing the cancellation of an important meeting in Washington of our Committee on U.S.-Russian Cooperation on Nuclear Non-Proliferation. This committee's responsibilities include assuring that nuclear weapons-grade materials are under control and out of the hands of terrorists. It required intervention at the highest levels of the State Department to gain the needed visas. Similar collaborations are under way in many other venues, and these require that we welcome qualified foreigners to our nation without restrictions or delays.

Building stronger allies through scientific and technological cooperation. It is clearly in our national interest to help developing countries fight diseases such as AIDS, improve their agricultural production, establish new industries, and generally raise their standard of living. There is no better way to provide that help than to train young people from such countries to become broadly competent in relevant fields of science and technology. Yet our new visa restrictions are making this more difficult. For example, several hundred outstanding young Pakistanis, carefully selected by their government as potential leaders of universities there and accepted for graduate training in U.S. universities, experienced a 90 percent denial rate in applying for U.S. visas.

Maintaining U.S. global leadership in science and technology. Throughout our history, this nation has benefited enormously from an influx of foreign-born scientists and engineers whose talents and energy have driven many of our advances in scientific research and technological development. Over half a century ago, Albert Einstein, Enrico Fermi, and many others from Western Europe laid the foundations for our global leadership in modern science. More recently, immigrants from other parts of the world -- most notably China, India, and Southeast Asia -- have joined our research institutions and are now the leaders of universities and technology-based industries. Many others have returned to take leadership positions in their home countries, and now are among the best ambassadors that our country has abroad.

Approximately half of the graduate students currently enrolled in the physical sciences and engineering at U.S. universities come from other nations. These foreign students are essential for much of the federally funded research carried out at academic laboratories.

Scientific and engineering research has become a truly global enterprise. International conferences, collaborative research projects, and the shared use of large experimental facilities are essential for progress at the frontiers of these areas. If we allow visa restrictions to stop international collaborations at our experimental facilities, then these facilities will cease to attract international support. Moreover, our scientists and engineers will no longer enjoy reciprocal access to important facilities abroad. And if we continue to exclude foreign researchers from conferences held in the United States, then those meetings may cease to take place in this country in the future, depriving many American scientists of the opportunity to participate in them.

In short, the U.S. scientific, engineering, and health communities cannot hope to maintain their present position of international leadership if they become isolated from the rest of the world. We seek the help of the U.S. government in implementing effective and timely screening systems for issuing visas to qualified foreign scientists and students who bring great benefit to our country. We view this as an urgent matter, one that must be promptly addressed if the United States is to meet both its national security and economic development goals.

Bruce Alberts
President
National Academy of Sciences

Wm. A. Wulf
President
National Academy of Engineering

Harvey Fineberg
President
Institute of Medicine