There is no question that, going through history, the United States of America is and always will be a country of immigrants. This country was built from people coming from overseas and making a life in a foreign land. However, as the long-simmering and controversial debate over immigration continues to be a focal point in presidential debates, it may surprise some of you to see the successful companies founded by American immigrants.
Google Inc., for starters, was co-founded by Sergey Brin, a Russian immigrant, in 1998. Brin moved to the United States at age 6 in the thick of the Cold War in 1979 and went on to become one of the richest men in the country. AT&T was founded by Scottish immigrant in Alexander Graham Bell, who was also the inventor of the telephone and investment firm Goldman Sachs was founded by a German immigrant named Marcus Goldman.
Immigrants have left a huge mark on American shopping as well. Immigrants from all over the world started companies such as eBay (Piere Omidyar, France), Radio Shak (Theodore and Milton Deutschmann, England), Kohl's (Maxwell Kohl, Poland), Big Lots (Sol Shenk, Russia) and Nordstrom (John W. Nordstrom, Sweden).
Among other famous companies founded by immigrants are the entertainment provider Comcast (Daniel Aaron, Germany), Yahoo! (Jerry Yang, Taiwan), Colgate (William Colgate, England), Sara Lee (Nathan Cummings, Canada), the chemical company Dupont (E.I. du Pont, France).
Several immigrants have flourished in more ways than just creating business and jobs. Moving to America has helped many men and women from several different places become some of the greatest minds in history in science and culture.
Among them is Albert Einstein, who is arguably the greatest scientific mind in history. After leaving Germany in 1895, Einstein won the Nobel Prize for Physics for his published work the "General Theory of Relativity" in 1916. He took a job in America at Princeton University and helped America prepare for the development of the atomic bomb.
Joseph Pulitzer was born in Hungary in 1847 and moved to America to fight in the Union Army during the Civil War. After the war, he worked in St. Louis for a German language paper and eventually became the publisher at age 25. Pulitzer went on to become owner of the St. Louis Post Dispatch and the New York World, making him one of journalisms most influential faces. He changed the media industry forever with his brilliance in marketing and editorial work. Every year, the Pulitzer Prize is given to those who show similar excellence.
Hundreds of athletes have come to America to help change the sporting industry in their respective professional sport. Among those athletes include Hakeem Olajuwon, who was born in Nigeria. Olajuwon was the first pick in NBA draft in 1984, selected in front of Hall of Famer Michael Jordan. Olajuwon won an MVP in 1994 and two championships while with the Houston Rockets. He retired as one of the great shot blockers and post players in the history of the game and became an American Citizen in 1993.
Immigrants have greatly impacted the movie industry as well, including one of the great martial artists in the history, Bruce Lee. Lee was born in China and moved to the United States at age 18. Lee began his work in Hollywood and helped break the racial barrier for many Asian-Americans in American film. With a great interest in Chinese martial arts building, Lee's work quickly shifted towards that theme. He even created his own martial art, Jeet Kune Do, before passing away tragically in 1973 at the age of 32.
There is no question that, going through history, the United States of America is and always will be a country of immigrants. This country was built from people coming from overseas and making a life in a foreign land. However, as the long-simmering and controversial debate over immigration continues to be a focal point in presidential debates, it may surprise some of you to see the successful companies founded by American immigrants.
History, numbers show U.S. politicians "solutions" for Refugees not ideal
In light of the recent terrorist attacks in Paris, France on November 13, many American politicians have come out with their takes on whether or not Syrian refugees should be allowed to enter the country and applied for citizenship through refugee or asylum status. Many, especially those on the right, have shown their true colors by speaking out against allowing refugees from a war-torn country to enter the United States. It is clear that many of those in positions of power here in America are against the United States taking the "tired, poor and huddled masses," to quote Emma Lazarus.
The United States House of Representatives passed a bill on Nov. 19 that would stall the program that allows Syrian refugees into the U.S. with a vote of 289-137. Of the 289 votes, 242 of them were Republicans who cited "national security" as the main reason for denying Syrians the right to refuge. The vote had enough of a majority to pass even after a potential veto from President Barack Obama. Although the Senate could still vote against the bill, it is clear that President Obama is one of few politicians on Capitol Hill that see Syrian Refugees for what they are: refugees looking to escape a terrible home for a better one. Before the vote took place, Republican Senator Elaine Morgan wrote an email to her colleagues suggesting that Syrian Refugees be moved to a "refugee camp" if admitted to the United States; as if to say we still lived in 1942. Morgan also wrote her own special commentary of the Muslim religion, saying their philosophy is to "murder, rape and decapitate anyone who is non-Muslim."
One particularly puzzling case is that of Mayor John Cranley. Cranley, who recently discussed future plans for Cincinnati becoming one of the most "friendly cities" for immigrants in the next few years, had a less-than-humanitarian take on Syrian refugees in a statement following the Paris attacks:
"Syrian resettlement is a federal issue, not a local one," Cranley said. "While the City of Cincinnati is not involved and has no jurisdiction on this issue, the actions of the federal government affect the safety of Cincinnatians, which is my highest concern. I understand the dire circumstances Syrian refugees face because I personally visited a refugee camp in Jordan last summer. However, in light of recent terrorist attacks in Paris, Beirut and Egypt, the federal government should halt its actions until the American people can be assured that exhaustive vetting has occurred."
It is clear that Cranley's idea for being "friendly" to immigrants does not come for all who would like to live in the city of Cincinnati, but of potential immigrants of which Cranley gets to handpick. Cranley does not want to take in Syrian refugees; although they may be the people who need to flee their country the most. Western Powers have already begun bombing Syria in order to hit ISIS in what intelligence says to be their strongholds. Historically speaking, Syrian refugees have peacefully lived in the United States following admission. Since 2011, 23,092 the number of Syrian refugees UNHCR has referred to the U.S. Refugees Admission Program. Over 7,000 Syrians have been interviewed by the Department of Homeland Security and 2,034 have been admitted to the United States in that time. Not one Syrian refugee that settled in the United States has been arrested, removed-due-to or charged with an act of terrorism.
Mayor John Cranley cited several new initiatives he expects Cincinnati to take in making the South-west Ohio city the "most immigrant friendly city in the United States." Cranley hopes to oversee an immigration Task Force, which Cranley started in 2014, to help create international attraction.
Among the initiatives the Task Force looks to bring forward are creating a center for new Cincinnatians that helps connect immigrants to services and other residents, launching a training program to help companies recruit international job candidates, providing immigrants with financial literacy training to help them navigate money management and home buying and marketing Cincinnati as an ideal location for manufacturing.
Another angle the Task Force looks to take is training police officers in cultural sensitivity, which could have something to do with the recent happenings in Cincinnati involving violence among the police force. Cincinnati is trying very hard to re-brand the local police force.
Given that the primary goals are creating jobs and spurring local growth, Cranley could be looking to primarily attract immigrants in the EB-5 program; where entrepreneurs and investors from overseas will come to the United States to invest in a commercial enterprise to help create jobs. The process is mutually beneficial to the Targeted Employment Area and immigrant alike, as the immigrant looks to attain Green Card Status through the program. There is also a Regional Center located in Cincinnati. Cranley may see that is the greatest opportunity fund several projects around the growing city.
"This is a country of immigrants," Cranley told the Cincinnati Enquirer. "We'll all be richer and better by being a friendly city to immigrants. Cincinnati can't miss out on this opportunity."
Cranley and his Task Force have thought up many more short-term and long-term goals, all of which hopefully will be completed within the next five years. The task force's five subcommittees are focused on talent retention, rights and safety, economic development, international attractiveness and resource development. The goals and ideas came from all five subcommittees brainstorming for the better part of the last year. In one way, that shows the city's commitment to the idea of attracting immigrants. On the other hand, the sheer amount of time the city spent just thinking about potential ideas (eight months) also brings to question whether the city will come through in finishing any of these goals within the five-year deadline for their long-term goals that was suggested by city officials.
The process will likely take several baby steps and will not be finished over-night, but hopefully the hub for new Cincinnatians will be created sooner rather than-later. Immigrants, especially those who are refugees looking for a new home, could use a place to handle all of their immigration matters without having to spend a lot of time trying to navigate through a new place. For starters, Cranley and city officials said the center could first be a website to help immigrants moving to the city before an actual building is built.
Earlier this month, the Department of Homeland Security (DHS) proposed several changes to its F-1 non-immigrant student visa regulations on optional practical training (OPT) for those working on degrees in Science, Technology, Engineering and Mathematics (STEM). The proposed extension would increase the OPT period to 24 months, which would allow STEM students to apply for a longer work authorization extension than before. The OPT program used to only last 17 months. The OPT period would start after the F-1 student completes his or her initial OPT period, which lasts 12 months. The proposal favors F-1 STEM students in several other ways.
Ideally, the longer amount of time for F-1 students would allow them to apply for several different H-1B job opportunities. H-1B visa could be a first step for F-1 students to begin a career and apply for their green card. In recent years, it has been difficult for F-1 graduates to apply for employment opportunities through an H-1B visa, given that the number of H-1B applicants has increased several years in a row. Last year saw almost two-thirds too many H-1B applications, as over 240,000 applied for a limit of 85,000 H-1B's available.
Also, those STEM graduates who would leave the U.S. after completing the initial one-year OPT program can return and receive the same extension if they choose to return for a Master's degree. Any F-1 student on a seventeen month extension can apply for the additional extension if the proposed ruling passes. If a graduated F-1 student with a STEM degree goes through an unemployment period, the proposal would increase that period to fill out a form I-765 from 30 to 60 days.
Several things must be completed before an F-1 student receives the extension, however. The Mentoring and Training Program (MTP) requires certain authorizations for those looking to extend their OPT program. The MTP requires the employers of F-1 students to prove that the students remains committed to work that has to do with their previous STEM education. The employer of an F-1 student using the STEM OPT program must be prepared to prove all facets of employment, including salary, hours, services, and benefits to show that the employee is being compensated properly. For the MTP, employers must show how the F-1 student will learn while on the job by stating their job description and goals to show it is a useful training opportunity. They will need to explain, in detail, the necessary skills that the student will learn while working for them. They will need to show how the training is directly related to STEM courses. They will also need to keep track of the student's performance and evaluate them properly to show that the training is proving to be fruitful. Basically, employers have to be prepared to work for their STEM OPT workers to be employed and also show that they have helped train the student to help them in their future endeavors.
On October 1, the Fifth Employment-Based preference (EB-5) Regional Center program was extended to Dec. 11 in order to give Congress more time to draft a long-term resolution. The program helps provide a crucial boost of foreign capital through investments from foreign nationals looking to attain Green Card/Permanent resident status through the program.
The EB-5 program impacts local economy as well as the national economy. A base investment of $500,000 would create at least ten jobs, since that is the requirement for a foreign investor looking to acquire permanent resident status. These investments often occur in industries in Targeted Employment Areas (TEA's), creating jobs and generating capital in areas that sorely need them. The direct effects of an EB-5 investment also include contributions to the Gross Domestic Product (GDP) and State, Local, and Federal taxes. Along with the inevitable job increases, the EB-5 program also helps stimulate the economy through household expenditures, as the investors themselves will contribute to the economy through every-day household needs (automobiles, moving, travel etc.). Given the state of the U.S. economy, the influx of money from foreign investors would improve the job market and overall cash-flow in foreign and domestic areas.
If, by Dec. 11, Congress decides to increase the visa limit to the desired 20,000/year, the program would be able to support over 100,000 jobs for Americans and generate billions of dollars to the U.S. GDP. Those numbers are almost 1/3 of that as the visa limit currently stands. In order to prove that their investment has generated and supported 10 full-time jobs, the investor must fill out a form I-829. Once approved, immigration restrictions are lifted. Given the desire for the EB-5 investor to become a full-time U.S. citizen, it is clear that jobs are almost always guaranteed to be created through the EB-5 regional center program.
During the 2013 fiscal year alone, spending associated with EB-5 Regional
Center investors contributed $3.58 billion to U.S. GDP and supported over 41,000 U.S. jobs. Their spending contributed over $750,000 to federal and local government tax revenues. The EB-5 provides jobs for all sorts of industries, including hospitals, construction, legal services, wholesale trade, real-estate, restaurants and transportation. Although most of the investors gravitate to the larger states and cities, as do most people, investors target all TEA's where investments are needed to help stimulate the economy.
In a time in our country where it has become increasingly difficult to secure and use traditional sources of financing for development projects, such as traditional construction loans, developer equity and tax credits, EB-5 investments have become an increasingly useable and important source of finances. Those on an EB-5 visa have a great incentive for their investment to be successful, as they came to the U.S. searching for the best way for them to obtain a permanent residency visa. In order to do that, they must create jobs. EB-5 investors handle all kinds of investor-driven projects on every scale.
The current EB-5 Regional Center program was extended to Dec. 11 as Congress attempts to draft a long-term resolution in the coming two months. In the mean-time, those looking to invest in American industry should take advantage of this extension before changes are made to the EB-5 program as the minimum investment will more than likely increase to $800,000 or more.
Clearly, Congress recognized the importance of foreign investments that create jobs for hard-working Americans. Foreign capital is a key part to the American economy, and Congress will look to spend the next two months finding a proper solution that all parties involved can be happy with the would-be revised legislation. The extension of the program was greatly in doubt as the Oct. 1 deadline initially approached.
Transparency appears to be an important goal for Congress. In the American Job Creation and Investment Promotion Reform of 2015 Act, which was introduced in June by Senators Chuck Grassley and Patrick Leahy, the Regional Center Program would continue for five more years while adding transparency and security to the program.
Meanwhile, Senator Rand Paul is attempting to make the program permanent, as he introduced the 'Invest In Our Communities Act' on Oct. 1. Paul looks to raise cap of 10,000 total visas and make it so that regulators would no longer count dependents (spouses and children) as a part of the cap, making it all investors. This would effectively increase capital and jobs for skilled American workers around the country, if passed. Paul is clearly one of the programs greatest advocates.
The American Dream is under fire after a government decision to backtrack on its promise to thousands of skilled immigrants, but justice may be coming in the form of a class-action lawsuit.
Following an initial publishing of the October Visa Bulletin (OVB) from the U.S. State Department (DOS) on September 9, 2015, it seemed that those who had previously been relegated to back-logged visa waitlists would have the opportunity to apply for permanent residency and green-card status. This policy optimization was rendered moot just days later after the DOS issued a revision that severely limited the number of immigrants eligible to apply for work visas under the new policies
As a result, and as anticipated by most involved, a class-action lawsuit has been lodged against the DOS, U.S. Citizenship and Immigration Services (USCIS), Secretary of State John F. Kerry, and several other government defendants by those afflicted by the policy change.
The Lead Class Representative on the complaint is Chintan Mehta, an IT professional in Bothell, WA, spent thousands of dollars on attorney fees and medical examinations in preparation for his application only to be spurned by the revision. He and his co-plaintiffs represent thousands, of primarily of Indian and Chinese engineers, scientists, and many other skilled professionals that have had their lives and futures of their families put on hold due to a callous and unexplained renege by the US government. To-date, the DOS, USCIS, and the others involved have yet to come forward take responsibility for their actions.
Without seemingly considering the ramifications for potential green-card applicants and immigration lawyers alike, the United States government reneged on their qualifying dates for applicants looking to start the process for acquiring permanent residence for the October Visa Bulletin. The changes to the bulletin happened but 12 business days after a previous agreement was reached.
In doing so, thousands of families, those on H-1B visas working in the United States, were affected negatively. Several thousand workers were pleased to hear of the new agreement on Sept. 9, which allowed those who had their priority dates in 2011 to apply for permanent residence, only to have the rug ripped out from under them just over two weeks favoring those whose priority dates were entered in 2009.
The 12 business-day waiting period was more than enough time for many families to start the application process, spending hard-earned money and taking time out of their daily lives, in order to prepare for filing their I-485 applications. Had the government reformed the October Visa Bulletin just a couple days, or even hours, following the initial and supported changes, it would have been better for families and businessmen alike. Immigration law firms are also greatly affected after this sudden change, as thousands of dollars in potential business for firms around the country are lost. As a result, American businesses are losing capital.
Along with simply losing the peace-of-mind and long term security, prospective applicants lost out on the ability to acquire travel documents. Also, if these noncitizens were able to apply for their adjustment of status applications, they would be able to gain eligibility to pursue other employment opportunities within the United States.
The revised filing dates for the EB-2 applicants will affect those from India and China, the countries with the largest back-logs and populations, the most. An overwhelming amount of those particular applicants would have been able to begin an application process with the priority date set at July 1, 2011. With it changed to July 1, 2009, those same applicants will now be forced to change their mind-set and future after a failed attempt at getting the process for permanent residence started. Some numbers say eligible applicants for an adjustment of status application fell by as much as 90%.
As the Sept. 30 deadline for Congress to renew the fifth employment-based preference (EB-5) investment program approaches, questions arise as to whether or not the act will expire or if a short-term extension will be established. Though nothing is set in stone to-date, it seems likely that if the immigrant visa program continues to exist beyond Sept. 30, changes will be made to the legislation.
One change that appears to be as likely as any is an increase in cost of investment for those who look to gain permanent residency through the program. Since 1990, an immigrant investor had to pay $500,000 to invest in a company in a Targeted Employment Area (TEA). Patrick Hogan, President at California Military Bases (CMB) Regional Centers, said the "most common amount" being discussed among congressmen is an increase to $800,000.
Along with a potential cost increase, Hogan believes the cap of 10,000 authorized investor visas will not be increased. Regulators not only count investors as a part of the cap, but also dependents of the investors, making the actual number of investors lower than the cap may suggest.
"There are a host of other proposed changes being bantered about," Hogan said. "It is clear Congress will not amend language such that only EB-5 investors are counted towards the 10,000 visa cap."
Although the EB-5 program only needs to the investor to create 10 jobs per investment, it has generated much more than that since the Immigration Act of 1990. In a 2013 article Washington Post Senior Correspondent Kevin Sullivan wrote that $6.8 billion were invested and over 50,000 jobs were created from 1992-2013 through the program. Sullivan also wrote that the EB-5 program is "booming in popularity," but also that the program has its opponent:
"...others argue that the EB-5 program amounts to buying citizenship, and that it unfairly allows wealthy foreigners to cut the visa line ahead of others who have waited for years."
Even with that opposing viewpoint, the loss of the EB-5 program will cost the United States thousands of potential jobs and billions of foreign investment dollars. Along with that, the jobs that are created through the EB-5 program come at no cost to American taxpayers, which is not the case for jobs created by projects through national and local government. Given the state of the U.S. economy, an influx of money from foreign investors could improve the job market and overall cash-flow in foreign and domestic areas.
The Historic visit of Pope Francis to the U.S. comes as a sign of hope for many immigrants. According to the United States Ambassador in the Vatican the Pope will urge the U.S. to embrace its immigrants.
Ambassador Kenneth Hackett states that the Pope's immigration message will counter the GOP Presidential candidate Donald Trump in his calls to build a wall between Mexico and the U.S. as well as deport millions of illegal immigrants.
The ambassador further adds that the Pope will stress the importance of engaging with the world in a time of turmoil when many people lost everything in their Homelands and in desperate need for a generous helping hand. The Pope will further shed the light on the U.S. history as a nation of immigrants and how crucial it is to maintain that.
Pope Francis is set to meet with some immigrant teens after meeting President Obama, addressing the Congress and the United Nations. They're migrant teenagers in a youth soccer program co-sponsored by New York's Catholic Charities. He will also meet with other immigrants during his visit to a New York Catholic school.
The Pope is going to discuss other issues during his visit as income inequality, family issues and the environment. President Barak Obama has referred to Pope Francis as a transformative leader. The Pope was able to engage the Church in to current social issues, addressing events and issues from all over the world from refugees' crisis to climate change.
After his visit to the US the Pope will visit Cuba. It is important to note that Pope Francis the 266th pope of the Roman Catholic Church and was elected in March 2013. He is the first Pope from the Americas. Pope Francis was born in Buenos Aires, Argentina, on December 17, 1936.The Pope's original name is Jorge Mario Bergoglio and he took his papal title after St. Francis of Assisi of Italy.
Hopes run high for this historic visit in a time of conflict, when many need to be reminded of the U.S. history of embracing immigrants and emerging as a world leader due to the diversity of its manpower.
In a recent development the Secretary of Homeland Security Jeh Johnson decided to classify Yemen for Temporary Protected Status (TPS) for 18 months due to the progressing warfare within the country. The Secretary may designate a country for TPS due to temporary conditions as civil war, an environmental disaster, or epidemic.
Yemen has been facing increasing violence resulting in an acute humanitarian situation. The Yemeni Civil War that began in 2015 is a continuous battle between two factions claiming to constitute the Yemeni government. Each Faction has its own supporters and allies. Violence has been escalating on daily basis in an extremely volatile part of the world, resulting in the death and injury of thousands of innocent victims. On the 2nd of September as the civil war rages in Yemen, Sanaa mosque blasts kill at least 20 civilians.
Therefore, asking Yemeni nationals in the United States to return to Yemen would endanger their personal safety. By virtue of Yemen's designation for TPS, eligible nationals of Yemen residing in the United States can apply for TPS with U.S. Citizenship and Immigration Services (USCIS).
Starting September 3rd 2015 through March 3rd 2017 the Temporary Protected Status (TPS) is in effect by which Yemeni nationals residing in the US will not be excised from the United States, may get an Employment Authorization Document (EAD) and may apply for travel authorization. The 180-day TPS registration period begins today and runs through March 1, 2016.
Eligibility requirements include the following:
• Applicants must be nationals to the country designated for TPS
• Applicants for TPS must demonstrate that they are both physically present and residing in the United States since September 3, 2015.
• Applicants also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS
• Applicants must apply during the registration period
H-1B Visa Audit Win: Ruling Eases Employer Payment Obligation when H-1B Workers Make Themselves Unavailable for Work
Introduced in a separate article, the new standard for avoiding wage liability to H-1B employees (without terminating them) created in Gupta vs. Compunnel raises a serious question. Now, to escape liability in this way, employers must first have "work assigned" to the employees in question. Because, the reasoning goes, the employees must be nonproductive due to "conditions unrelated to the employment," and if there is no work assigned it could be true that the lack of assigned work is the true cause of their nonproductive status. If it is, then the employer's case for escaping wage liability cannot be accepted (and the burden of proof for such a case is on the employer).
Thus, what may count as "work assigned" in this context becomes of consequence. Indeed, it was a central focus in a case recently argued by Attorney Gus Shihab on behalf of an affected employer: Administrator vs. Parsetek. Parsetek is a tech consulting agency in Virginia. Employee S.M. was hired by Parsetek with an effective and prevailing wage of $51,376 per year--but was never placed on work assignment due to her being unavailable for such, but was only given a bona fide termination many months afterwards. The case revolved around Parsetek's wage liability in light of the Gupta standard despite her never having completed any work on its behalf.
In the first two months of her being with Parsetek as an H-1B, S.M. was interviewed for a three-year assignment that would have resulted in significant profit for Parsetek. However, nothing came of it. Parsetek claims that it was because she continuously asked to delay the start date of the assignment. Not long after that, S.M. informed Parsetek that she would be leaving Virginia to join her boyfriend in Chicago. This alone did not cause serious alarm because companies like Parsetek can place workers virtually all over the nation. So, it continued to market her to several end-client employers. This went on for seven months, with S.M. seeming to cooperate. However, her responses grew less and less frequent.
Then, she stopped replying altogether, and her phone line was apparently disconnected. Parsetek felt that its obligation to pay her ceased at that point. Knowing that some wages were due (because of H-1B regulations) when S.M. was apparently ready to go to work (while she was at least partially responsive), Parsetek paid her $16,000. It didn't hear from S.M. at all for almost a year after this, and when it did it was only when she was requesting documentation to take home out of the country. Parsetek then completed a bona fide termination.
Eight days later, S.M. contacted the Wage and Hour Division (WHD) at the Department of Labor (DOL) complaining that Parsetek had not paid the required wage. After a brief investigation, the WHD Administrator very much agreed with S.M., and declared that Parsetek owed its former employee an additional $58,629.80. This figure was arrived at by doing none other than deciding that S.M. was owed the prevailing wage rate for her entire "employment" at Parsetek (minus the $16,000 that was already paid). Parsetek argued that this was not only inequitable but also a mischaracterization of regulations.
However, Administrator's counsel argued that it was simply applying Gupta. Its case was that Parsetek should pay because it couldn't prove that S.M. caused herself to be unavailable for work because, in turn, it had no assigned work for her to accomplish. The argument has a certain allure to it. How can one know that another doesn't want to work when there is no work to complete anyway? Nonetheless, the judge in this case agreed with Gus Shihab that no matter the soundness the Gupta argument, it simply doesn't apply in that way. As a consulting company, Parsetek generally doesn't assign actual work to most of its employees. Instead, it assigns them to end client companies that will in turn assign work of their own.
The Gupta argument must thus apply differently to consulting companies. The judge further agreed, saying that in this case, attempting communication with and trying to market an employee for an assignment or position with an end-client is sufficient for the Gupta standard. When an employee stops communicating with its consulting agency employer, such marketing becomes impossible. Thus, the judge found that Parsetek fulfilled its requirement to escape wage liability in showing that S.M.'s nonproductive status was "due to conditions unrelated to the employment." Specifically, he found that Parsetek's wage liability ceased when S.M. stopped responding.
Parsetek didn't escape without some liability, however. The judge found that during the seven months of H-1B status that S.M. was at least "marginally responsive," she was due her prevailing wage. This translates to $27,268.80 minus the $16,000 already paid to S.M., meaning that Parsetek still has to pay an additional $11,268.80. But the DOL's being incorrect in declaring that Parsetek owes $50,000 more is a win for companies like it and the American tech industry that they support. The clarification of the Gupta standard found in Administrator vs. Parsetek allows employers to hire H-1B workers with the peace of mind of knowing that uncooperative employees cannot threaten them with the harsh choice between facing steep wage liability and losing a scarce resource through termination (due to the H-1B cap).
In a February blog article, we covered the case of an H-1B employee who had "absconded." Specifically, she made herself patently unavailable for work by fleeing the area and being unresponsive to attempts to assign work to her. In normal circumstances, there are easy solutions to this kind of problem. But with the Department of Labor's (DOL) support, the former employee was able to construct a somewhat persuasive case that the employer owed her a great deal of money. Luckily, however, the judge disagreed. He instead agreed with the employer--represented by Attorney Gus Shihab. To explain the case, the situation that led to the government's coming to side with the employee must first be presented.
To hire an H-1B worker, an employer must demonstrate (through a Labor Condition Application) that the foreign worker's presence displaces no American workers. The goal is to limit the incentive one has in hiring H-1B workers to their skills and qualifications. Nonetheless, some groups are blaming H-1B workers for certain economic woes. Perhaps because of this, the government appears to be attempting to make the hiring of H-1B workers less and less attractive.
One consequence of Labor Condition Application requirements is that hiring H-1B workers comes with a high standard for avoiding wage payment liability. In order to be released from this liability, an employer must effectuate a "bona fide" termination (which is more complicated than a normal termination) or show that the employee was unavailable for work (or in "nonproductive status") due to "factors unrelated the employment." If neither of these are done for any period of time (and the employee has not resigned or forfeited H-1B status), an employer is obligated to pay the employee as if he or she had been regularly working (even if this is not the case). This pay must be at least the prevailing wage of people with the H-1B worker's same occupation in his or her area.
The preceding is increasingly relevant because being competitive in the tech world requires ever specialized skills--but doesn't always need them for long periods of time. This has led to the rise of technology consulting companies. Many of these skills are insufficient in the U.S. workforce and must be supplemented with foreign workers if demand for them is to be met. This has caused those consulting companies to look for these skills in other countries, with the H-1B program as their preferred avenue. However, these facts have created a difficulty (in addition to the short supply of H-1B visas).
This difficulty became manifest in a recent case: Gupta vs. Compunnel. It has always been the case that the burden of proof to show that an H-1B employee has entered nonproductive status due "to conditions unrelated to the employment" has fallen on the employer. This isn't a big problem for H-1B employers, in part because of how much worse the program would be for them if the only way to avoid wage liability was through bona fide termination. Given the short supply of H-1B visas, applications only remain open for one week each year, and so many are received that a random selection process is used. Aside from the comparatively small group that is able to file uncapped, much less than half of the H-1B petitions received by USCIS are chosen. Those not selected must reapply the following year or seek alternatives.
Somewhat exacerbating the situation, it was found in Gupta that an employer's showing that an employee's nonproductive status is due to outside conditions is alone insufficient for escaping wage liability (without termination). Escaping it in this way now also requires that the employer show that there was work available for the H-1B employee to complete upon returning to productive status. Otherwise, it is reasoned, how can an employer prove that the employee's nonproductive status was due to nothing more than a lack of work to accomplish? The application of this new standard to consulting companies with H-1B workers was at the heart of the aforementioned difficulty. Guidance, or at least some clarification was badly needed.
This is why the case mentioned in the first paragraph is so important. With DOL support, a former H-1B and consulting company employee tried to use Gupta to show that her former employer owed her nearly $50,000. This represented about a year's salary--for a year that she had skipped town and was patently unresponsive--but not yet terminated. She had never been put on a consulting assignment, so DOL believed that the precedent created in Gupta prevented the employer from proving that the employee had been nonproductive "due to conditions unrelated to the employment." Thankfully, this argument didn't fly with the judge. (The specific details in the case and its full conclusion are covered in a separate article.)
USCIS has issued guidance describing some situations where it is required to file an amended H-1B petition. This guidance follows a ruling out of its Administrative Appeals Office on a case that we covered several weeks ago: Matter of Simeio solutions. In a blog article, we went through USCIS' investigation and the resulting conclusion: that certain liberties taken by Simeio led, perhaps unknowingly, to violations of the H-1B program. Though the company later gave effort to correct their errors and begin compliance, USCIS revoked the concerned aliens' H-1B visas. It seems reasonable to conclude that the guidance is intended to prevent confusion that may have led to Simeio's violations.
In the referenced case, USCIS and State Department investigators discovered discrepancies between information provided on petitions, obtained in consular interviews, and received from direct communication with Simeio employees. These discrepancies eventually led the investigators to find that some Simeio H-1B employees were working in locations not specified in their most recent petitions--and that this fact caused them to be paid less than was required. H-1B employees must be paid no lower than their assigned "prevailing wage," and there may be a different prevailing wage for each class of occupation in each Metropolitan Statistical Area (MSA). The MSAs from which these H-1B employees were in fact working had higher prevailing wages for their occupations than the MSAs described on their most recent H-1B petitions. Because they were paid near or at their old MSA's prevailing wages, their switches in worksite were not allowed without certain minimum increases in pay. However, the switches happened without sufficient increases.
The new guidance has been issued in part to prevent situations like above. It can be considered a reminder of current policy along with a clarification of USCIS' interpretation of it. The logic of the guidance is as follows:
- Regulations already state that when an H-1B employee's employment situation significantly or "materially" changes, his or her employer is required to submit an amended H-1B petition (or an altogether new petition if preferred).
- Regulations also state that any change that may affect an H-1B holder's continued eligibility for H-1B status is considered a "material change."
- As is obvious, any change of worksites to a geographic region not covered by the original Labor Condition Application (LCA) and its resulting prevailing wage requires a new LCA with a new prevailing wage determination.
- USCIS now maintains that any change that requires a new LCA is considered a change that may affect continued eligibility for H-1B status.
- Thus, it is a "material change" when an H-1B employee changes worksites to a location not covered by his or her most recent approved LCA. So, an amended or new H-1B petition must be sent whenever this occurs. Simply filing a new LCA is insufficient. However, the change in location may occur as soon as the new or amended H-1B petition is received by USCIS; it is not necessary to wait for approval. But if a denial is sent, the employee must promptly return to the original worksite or forfeit the visa.
For further clarification, the guidance also lists situations where it is not necessary to submit an amended petition. The following are the most likely to be relevant:
- A prevailing wage is one that is meant to be representative of some class of occupation in a particular MSA. So, any move within an MSA would not require a new LCA. Thus, such a move does not itself require an additional petition.
- Temporary job placements (30 days or less) in a location outside the original MSA do not require new LCAs. In some cases, this can be extended to 60 days. See (c) of 20 CFR 655.735.
- Movement to "non-worksite locations" does not itself require new LCAs. Such locations may include: places where employees engage in developmental activities (like seminars and conferences) and the several places an employee that spends little time at any one location may visit.
There are two final points to consider. First, any H-1B employee that is now working in (or was on May 21st already in the process of moving to) an MSA not covered by the LCA submitted as part of his or her most recent H-1B petition must file a new or amended petition by August 19th 2015. And second, amended H-1B petitions may be submitted while other related petitions are still pending. USCIS receipt notices of the petitions in question should be included with the amended petition in such an event.
Executive Action still in Court Tangle
The Fifth Circuit Court of Appeals has unfortunately denied the government's request for an emergency stay on Judge Hanen's injunction against DAPA and expanded DACA. After the president announced these programs last November, a group of Republican state officials sued the administration over them. In February, a Federal District Judge put an indefinite delay on their implementation. The government appealed this decision to the Circuit Appeals Court, asking to essentially undo the delay. In a 2-1 ruling, the Appeals Court denied this request, putting DAPA and the DACA expansion into a very uncertain situation.
If allowed to carry on, these programs would provide temporary relief from deportation and give work authorization to up to five million undocumented immigrants. This group is still less than half of the undocumented population and is very deserving of protection. These are people that were either brought here before the age of 16 or are parents of lawful permanent residents or citizens. In both cases, recipients would have had to have been continuously present in the U.S. since 2010. We believe that these executive actions are legal and are good for the economy, so we are saddened by this situation and hope for a swift resolution. The ruling was only preliminary: in July the Court will hear arguments for and against the lower court's delay. At the same time, the lower court will review the legality of the program, though those in favor of reform believe that this judge is biased against the administration's efforts on immigration in general.
Lawsuit Underway to Improve EAD Processing
On May 26th, a class action lawsuit was filed to fix USCIS' recent problem with the issuance of Employment Authorization Documents (EAD). When EAD processing takes longer than expected, a temporary "interim" EAD is supposed to be granted. This policy exists because of the essential nature of the right to go to work and earn a paycheck. There is a problem because processing delays are becoming more prevalent. The problem is made serious by the fact that interim EADs are getting hard to find. Indeed, USCIS representatives recently indicated that the agency has stopped issuing them altogether.
This policy is leaving those affected without the legal right to work in this country. The consequences involved are almost too obvious to mention, but the situation becomes alarming when it is added that the problem also applies to EAD renewals. A lapse in work authorization potentially leaves one's employer with the heartbreaking choice between laying off a loyal employee or facing fines (or worse) by ICE. To some immigrants, because of state law, a lapse in work authorization can even lead to loss of driving privileges--according to the American Immigration Council. Needlessly allowing these difficulties to ensue is not only bad for those immigrants (and immigrant families) involved, but it is also bad for the economy. We fully support this lawsuit and will monitor it closely.