Archive for the ‘H-1B Visas’ Category

Thoughts on Parts of the Senate Immigration Bill

May 25th, 2013
posted by at 2:35 pm

By Murali Bashyam

1.  On Legal Immigration

Deep Thoughts on ImmigrationMany employment and family-based categories have had severe visa availability backlogs for quite some time.  In fact, in certain situations, permanent residency applications can easily take well over a decade.  The Senate Bill (s.744) addresses this issue by exempting derivative family-members, and some physicians and PhD holders, from the annual-limits for employment-based immigration.  The legislation would also allocate additional visa numbers to those foreign students who graduate with advanced degrees in Science, Technology, Engineering and Mathematics.  These provisions will help clear the backlog and make employment-based permanent residency a faster process for intending immigrants.

The legislation will also have a significant impact on family-based immigration.  Right now, there are visa availability backlogs for Lawful Permanent Residents who want to sponsor their spouse for residency in the US.  Residency processing came sometimes take many years.  On the other hand, spouses of US citizens are classified as ‘immediate relatives’ and are not subject to these visa backlogs.  This bill would redefine ‘immediate relatives’ to include children and spouses of permanent residents, thus removing them from these numerical limitations and residency processing will be much faster, as it should be.

2.  On the H-1B Visa

Some of the provisions in the Senate legislation related to the H-1B professional worker category are good and others are bad.  On the positive side, the bill increases the regular H-1B cap from 65,000 to 110,000.  In addition, it would allow the Department of Homeland Security to increase the H-1B cap up to 180,000 depending on demand.  The legislation would also increase the Master’s cap from 20,000 to 25,000.

Another very favorable provision is allowing H-1B workers 60 days to transition between jobs.  Our currently law does not allow any transition time, which is unrealistic in our job market.  The bill will also allow certain spouses of H-1B visa holders to obtain work authorization, which again is an improvement over current laws.

Unfortunately, the bill also places some unnecessary burdens on employers who use the H-1B program.  For example, all employers would be required to test the US labor market before filing an H-1B application.  Under current law, only certain H-1B dependent employers (those whose workforce consists of a large number of H-1B workers) must test the labor market first.  In addition, the bill places severe penalties on H-1B dependent employers.  For example, employers with 50 or more employees would have to pay an additional fine of $5000 per sponsored worker if more than 30 percent of their workforce consists of H-1B workers.  This fine increases to $10,000 if their workforce consists of more than 50 percent of H-1B workers.  The bill also places an upper limit on how many H-1B workers a company can ultimately hire.  We believe that some of these provisions should be changed to make the H-1B program more ‘market-based’ instead of heavily regulated as is proposed by the current legislation.

We recently did a Webinar on the Senate Immigration Bill.  To view our powerpoint presentation, click HERE.

The USCIS H-1B Prediction, Conspiracy Theories, and the H-1B Lottery

April 14th, 2013
posted by at 6:48 pm

By Pam Prather

Calling Mulder and Scully….

Two weeks prior to the initial filing date for FY2014 HIBs, the USCIS published their prediction that the cap would be reached in 5 days.  This turned an otherwise normal H-1B filing ‘season’ in a down economy into a mad rush for employers and immigration practitioners.

Hmmmm…so why did the USCIS issue this memo?

There are several interesting theories out there as to why the federal agency would take this unprecedented step. Prior to this year, the USCIS only reported on ‘reaching the cap’ AFTER they started to receive applications – in other words, they used real data. Why would they pull these numbers out of the air for the first time ever?  Was it to raise awareness of immigration issues being addressed by Congress as we speak? Was it to inflate our perception of a job market turnaround?  Could it simply have been a way to avoid a protracted application period, allowing USCIS staff to settle in and get down to the real work immediately?

Many agree that without the announcement regarding the predicted high demand, the 2014 quota would likely not have been reached for several weeks – if not longer. Last year it took two months, 2011 took seven, and in 2010 the quota was not reached for nearly ten months. Is it a coincidence that – correctly or not – H1B demand is associated with our overall economic health?

I guess the question we ask ourselves is, who benefits from this year’s USCIS H-1B prediction?

Exactly. 🙂 Clear as mud.

On a related note, how fair is it that they will use a lottery system for all the applications reached in the first five days? I don’t know about you, but we worked extremely hard for months to ensure that our clients’ petitions were received by USICS on April 1.  Unfortunately, under USCIS policy an H-1B petition received on April 4th or 5th has the same chance of being picked in the ‘lottery’ as a case received on April 1st.   Our politicians often talk about ‘fairness,’ but how fair is this?

Regardless, this year’s H-1B cap is over in 5 days.  Under current law, an employer cannot file a new H-1B application until next year.  Yet our employers need the flexibility to select qualified professional workers from a global pool right now in order to compete.  I wonder if Comprehensive Immigration Reform will cover this…..

Stay tuned!

Is Canada Winning the War for Talent?

June 25th, 2012
posted by at 11:06 pm

By Pam Prather

While the United States continues to struggle with immigration policy, Canada cements theirs. As we prolong the societal debate over whether we even WANT immigrants anymore, Canada opens wide its arms and assures them they do.

“Currently on an H1B Visa or otherwise working or studying in the United States?” asks canadavisa.com.

They openly recruit temporary US professional workers who no longer feel welcome in a country where it can easily take over ten years to get a Green Card, even for those who qualify for one of the strictly-defined immigrant categories.

Who can blame our northern neighbors for taking advantage of our labyrinthine of laws that wind their way through the Department of Labor, Department of State, and Department of Homeland Security?

Why wouldn’t they cash in on our confusion and indecision regarding immigration policies?

After all, they too have concerns about economic growth and ‘brain drain’. They too exert great effort in filling positions in the STEM (Science, Technology, Engineering, Mathematics) sector.

Studies show the average American believes that 39% of the U.S. population was born abroad. It’s actually 13% – just a little higher than Great Britain’s.  Canada’s current foreign-born population, on the other hand, is almost 20%. And they’re not alone. Australia’s political and popular culture was described as xenophobic less than two decades ago. Their population is now more than 25% foreign born.  They, coincidently, are enjoying economic growth and robust cultural diversity.

Bottom line, it looks like Canada is learning more from their southern neighbor’s mistakes, than America is from theirs.

 

Saving Grace? The Grace Period Myth for Laid-Off H1B Workers

April 28th, 2012
posted by at 6:40 pm

By Pam Prather

Many employers, H1B holders, and even immigration practitioners talk about a grace period after an H1B employment relationship has ended.

This so-called “10 day rule” is a myth.

A common scenario we hear of is that of an H1B employee who has been laid off – although not that uncommon in this economy. Most people understand that as of that day, the H1B visa-holder is not authorized to work in the U.S., no matter what the I-94 says. Unfortunately, the widespread misconception is that the laid-off foreign national is automatically granted 10 days to find another job, or even just wrap up their affairs.

This is simply not true.

The basis for the false impression is likely the H1B provision that states:

“A beneficiary shall be admitted to the United States for the validity period of thepetition, plus a period of up to 10 days before the validity period begins and 10 daysafter the validity period ends. The beneficiary may not work except during the validity period of the petition.”

This provision often does not apply in the best of circumstances, and certainly does not when an employee is terminated. The USCIS has taken the position that because the foreign national was admitted for the specific purpose of providing services to his/her U.S. employer, once that relationshipis over the H1B employee is no longer in status. Severance pay, unused vacation days, or any other arrangement to ‘stretch’ the employment does not help.

Once the employee is no longer working for the employer, he/she is no longer in valid non-immigrant status unless another application has been filed on their behalf.

Luckily, capturing laid-off professional workers is not the highest priority for the Department of Homeland Security. Often, if the case is presented carefully, the Immigration Service will ‘forgive’ the employee of a short period of invalid status. Again, this is NOT a “10 day rule”, but rather a strategy employed by experience immigration attorneys that is often successful.

Remember, contact a reputable immigration attorney in situations such as this, where there is so much at stake – stay, status, job, home, and even future visits to the United States.

H-1B Amendments: The Times They Are A-Changin’

March 8th, 2012
posted by at 8:06 pm

By Pam Prather

If your time to you

Is worth savin’

Then you better start swimmin’

Or you’ll sink like a stone

For the times they are a-changin’.

Bob Dylan’s lyrics in this song are timeless.

They apply to almost every aspect of our lives, including immigration laws and policy.

The times, they definitely are changing.

Ask any Information Technology (IT) company who places their employees at end-client sites if times have changed and the answer you’ll likely get is, YES.

We have been advising H-1B IT employers for quite some time now that a change of location for their employee cannot be ignored when it comes to their status, the Department of Labor, and the conditions of their employment.  In the past, companies would simply apply for a new Labor Condition Application (LCA) when an employee moved to a new work location.  However, that is not enough.

It is now imperative that any change or addition of work location MUST be reported to the USCIS through an actual H1B Amendment.

EVERY time the employee is moved to a different client, the company needs to notify the USCIS.

With an increase of USCIS site visits, it’s getting more and more important that communication with this federal agency be thorough and timely.

Here is a section (all identifying factors have been changed) of a 10-page USCIS “Notice of Intent to Revoke” an already approved H-1B petition AFTER a USCIS site visit, of which we were recently made aware:

The very nature of your business, locating and placing aliens with computer backgrounds into positions with firms that use computer programmers and/or analysts to complete their projects, is such that multiple employment locations would be expected.

In your filing, LCA Case Number I-200-00000-111111 certified on August 9, 2010 for 123 Main Street, Anytown USA, was submitted. No other work locations were noted on the LCA or in any other evidence in the file.

However, on March 28, 2011, an administrative site visit was performed at the address listed on the petition as the location where the beneficiary would work. Upon review of the work location address at 123 Main Street, Anytown USA, the site inspector discovered that your company did not exist at that location; and the beneficiary was not working at that address.

On July 01, 2011, John Doe, Vice President of ABC Company, sent an email to our office which stated that the beneficiary is scheduled to work on July 10, 2011 at XYZ Company, 789 Side Street, Every City USA.  At the time, Mr. Doe emailed a copy of the LCA I-200-00000-222222 which was certified on June 30, 2011 for 789 Side Street, Every City USA. No other locations were noted on the LCA.

A search of USCIS records indicates that you did not file another petition on behalf of this beneficiary.

As such, the record only contains one valid LCA, LCA Case Number I-200-00000-111111 certified on August 09, 2010 for 123 Main Street, Anytown USA. Since the beneficiary was not found at the location listed on the LCA, and it cannot be determined where the beneficiary is currently working, USCIS has determined that the LCA submitted cannot be considered valid.

So, this employer did the right thing in filing a new Labor Condition Application after his employee was moved to another End Client pursuant to a new contract.  However, the employer did NOT file an H-1B amendment with USCIS.

A new LCA without an official H-1B amendment can no longer satisfy the USCIS.

If an employer does not file the amendment, it risks getting a Notice of Intent to Revoke an already approved H-1B petition, as mentioned above.  Or, its employee can encounter problems when applying for an H-1B visa at a U.S. Consulate Office abroad.

An H-1B amendment (without an H-1B extension request) only requires a USCIS filing fee of $325.  It’s worth the cost, or an employer risks losing the employee and client project.

You should contact an immigration attorney any time your H1B employee’s work conditions change to a degree that might be considered significant.  But certainly contact one if the work location changes.

”The times they are a-changin’.”

 

Riddle Me This, Riddle Me That

March 1st, 2012
posted by at 12:46 pm

We recently wrote of a situation at the Hyderabad consulate, wherein IT consultants applying for H-1B visas are being threatened with a lifetime ban of the United States.  In making these applicants sign an affidavit regarding their future employment conditions, officers are trying to ‘catch’ potential non-immigrant workers committing fraud through ignorance.

We wanted to follow up with a list of questions that have been asked of some of these applicants.   Knowing this well in advance of the visa appointment – and making sure to have correct information from the employer – will reduce the risk of inadvertently giving incorrect information.

These are some of the questions being asked by U.S. Consular Officers:

  • What does your employer do?
  • Who is the client?
  • Who assigns your day-to-day activity?
  • Which division do you work for?
  • What is the name of your supervisor? Spell it for me?
  • Do you have any documents mentioning your employment?
  • Is your manager on site?
  • How often does he/she visit?
  • How long does he/she stay at client site?
  • Who is the manager for the client?
  • When do you interact with him/her?
  • Did your employer provide any tools or devices to perform your duties?
  • Do you use that laptop at client site?
  • If any situation arises at the client site then who do you inform?
  • Who has the right to hire, fire, and pay you?
  • To whom will the client report your evaluation?
  • Do you have any benefits?
  • Who is the health insurance carrier?
  • How many employees work on this project from your company?
  • Do you have a copy of the agreement between client and employer?

Add a “riddle me this, riddle me that” in front of most of these and what you have are the questions of a villain in a Batman movie!

If you’re going to be applying for an H-1B visa at a U.S. Consulate, you should definitely consult an Immigration attorney first.

Forewarned is forearmed!