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April 12, 2015

Visa Bulletin System under Court Scrutiny

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Each month, the State Department releases the Visa Bulletin, which is how it announces who is eligible to apply for permanent residence. More precisely, it answers the question of "who has waited long enough for it?" This involves a very complex process, so we recently did our best to explain it in [two publications]. Regulations from the most recent comprehensive immigration act (which took effect in the early 1990's) stipulate several immigration categories and a per country cap (among many other things). State's method of compliance with these regulations is the determining factor for who gets visas, but the District of Columbia Circuit Court of Appeals has found that the Department may be going, perhaps illegally, much farther than law dictates.

Chinese EB-3 immigrant Meina Xie has been waiting for the State Department to give the go-ahead on her petition for permanent residence for over eight years. There is some evidence that this kind of delay cannot be helped. First and foremost, no more than 7% of any year's annual visas can go to immigrants of one particular country. Being that she is from the world's most populous country--and is petitioning in a lower preference category, delays were likely inevitable. Although the decision recognizes this, it finds also that State may be abusing its authority in the degree of subjectivity with which it distributes visas.

At the heart of Xie's case is a statute that State is apparently ignoring: § 203(e)(1) of the Immigration and Naturalization Act of 1990. It says "[permanent residence] shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed." Believing that citing this statute in court could finally end her waiting period, Xie sued. The judge in the original case sided with State, however, who argued that Xie's complaint failed to identify a specific and discrete instance of its ignoring a legal responsibility. The appeals court disagreed, finding that asking for application of 203(e)(1) was sufficient grounds for a suit because State failed to show adequately that it was in fact following it.

Instead, the court took note of a practice that may be in violation of this rule. Xie falls in the "Other Worker" sub-category of EB-3, which is arguably the easiest employment based immigration option to qualify for. This translates to longer wait times, as there are only 5,000 visas each year available for Other Workers, out of 40,000 for all EB-3 immigrant workers. The rest of them are for the "Skilled Worker" and "Professional" sub-categories. For some reason, however, only 319 Other Worker visas appear allocated to China. The court noted that this makes it seem that State is applying the 7% rule from the per country limits to the Other Workers sub-category when it need only apply it to the total visas of all types given to people of a particular country.

It may at first seem acceptable that State is subdividing categories to ostensibly comply with a regulation affecting the universe of visas, but the Court said that doing so may be in violation of 203(e)(1). "Other Workers" from China who have been waiting for years could be given visas while other Chinese immigrants are made to wait a little longer. The Court stopped short of mandating this--and far short of saying that the statute mandates a literal one-by-one temporal queue. However, it did say that Xie probably deserved to have had her petition at least examined by now, considering how many immigrants across all categories that petitioned after her but had success long ago.

In the Court's view, State did not provide sufficient evidence of its behavior's being due to statute rather than in spite of it. In its defense/explanation, the Department said it has the ability to justify the visa distribution with its predictions of future demand, among other things. However, the Court held that so long as State appears that it may be in violation of 203(e)(1), the case will not be dismissed, as was done in the lower court. Instead, it reversed this dismissal and gave the case back to the original court with instructions to not rule in State's favor unless it is better able to make its case. In closing, the Court noted with some annoyance that the Department did not share its formula for creating the Visa Bulletin. Without the formula in hand, it may be difficult to determine if statute is being upheld or not. It is therefore likely that State will soon provide the formula--or face an unfriendly ruling.

March 25, 2015

H-1Bs are not displacing American Workers

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Congress is at an impasse on the question of how to fix our often dysfunction--and never ideal--immigration system. There has been debate, and bipartisan solutions have been put forth, but none of this has resulted in any actual reforms. The last time the immigration system was updated was 1990. Since then, the partisan divide--and political distrust--has been on an upward trend. As needed as it is, immigration reform seems to just be too great of a political risk for too little reward. Even comparatively small reforms, such as increasing the H-1B cap (which technically isn't an immigration issue), cannot escape controversy any longer. We have argued in another article that the cap, which demand exceeds threefold, should be raised as soon as possible. However, others are beginning to make it known that they do not share this view.

Some of the biggest supporters of raising the cap are tech industry giants who say that doing so will increase their global competitiveness. At least a plurality of H-1Bs go into the IT field. Nonetheless, there has been an increasing prevalence in the tech community of the view that the current H-1B system harms American workers and is bad for the country. Several technology publications have claimed that the H-1B system's built-in protections for the American worker are simply not working. They are referring to the Labor Certification process, the effect of which is to ensure that no H-1B worker is taking a job that Americans are actively seeking--or working for less than the "prevailing wage" for that job. (The prevailing wage can be thought of as the "going rate" or fair pay for the job, when all things are considered. The U.S. Department of Labor calculates this amount.) The issue is that H-1B workers are increasingly getting IT jobs, while the apparent threat of layoffs among American IT workers is also on the rise.

Technology publications, and recently conservative media, have pointed out that H-1B workers are in some instances replacing American staff, being paid less to do the same work. Critics believe that this is (or at least ought to count as) a violation of Labor Certification requirements. There are several problems with this view. To begin with, nothing in the regulations say that H-1Bs cannot replace American workers. There are only two (major) types of violation. The first is when there is an equally or better qualified candidate seeking a job that is instead given to an H-1B, and the second is when an H-1B works for less than the assigned prevailing wage.

Admittedly, replacing a great deal of American workers in order to hire H-1Bs to cut costs does sound like something the Labor Certification process should prevent. But there is a key fact that the critics are apparently ignoring. It is not necessarily implied that two people are in the same employer or occupation even if they perform some of the same exact tasks. This argument against raising the visa cap fails to consider that the foreign aspect of the replacement workers might not be what caused the layoffs. There may be an appearance of American workers being displaced due to the presence of foreign ones, but this characterization is incomplete at best and misleading at worst.

There is a growing trend in employment that is especially prevalent in the tech industry; a trend towards the use of staffing agencies instead of hiring in-house staff. The amount of companies reporting that they intend to hire temporary workers has jumped over 15% in the past decade, almost reaching 50% of all employers, according to USA Today. Further, the analytics company WANTED Technologies found that 70% of "high volume" positions for staffing agencies are in the IT field. It just so happens that many H-1B workers want to come to the U.S. to fill this demand for temporary work. After all, they are well suited for such work, given the temporary nature of their visas.

Not all companies need permanent IT staff. In fact, with the huge advancements over the past decade, much more can be done with less people. Large projects may come up from time to time, so it is economical to keep only a skeleton staff permanently while importing temp labor when it is needed. This allows companies to maximize efficiency while the temp workers can maximize their employability (by being moved around by the staffing agency that directly employs them). It should be easy to see that it is a mistake to blame the H-1B program for this.

A major case recently highlighted in tech and conservative media as being a prime example of the H-1B harming American workers is based on this very mistake. (We have covered the issue in a separate article.) While it could be true that some companies are able to circumvent Labor Certification protections, our firm's experience is that these fears are not well founded. Even if Congress refuses to raise the H-1B visa cap, we predict that there will still be a process of firing and rehiring in the tech field as companies try to do more with even less. Instead, workers that could be bolstering American tech dominance here would be working to undermine it abroad. This cannot be good for the job security of most American tech workers.

March 23, 2015

Opponents of Raising H-1B Cap Mistakenly Blame H-1Bs for Layoffs

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Technology companies have been pushing Congress to raise the cap on H-1B visas, which provide foreign nationals a three-year stay in the country to work in a specialty occupation. The unified industry support indicates that the major players think they can take advantage of the surge in talent that would accompany the additional visas. Unless these large companies are mistaken, this small reform would give American technology companies an edge over their overseas counterparts. Bipartisan support for this reform had been growing due to the fact that no one was challenging it, until now. Southern California Edison (SCE), a large utility provider in its region, recently laid off a significant amount of tech staff and instead brought in the tech solutions company Infosys for staffing. One of the laid off employees, J. Palmer, recently went before Congress to argue against raising the H-1B cap. Most of the Infosys employees that have been assigned to SCE are apparently H-1B workers.

Palmer argued that not only was SCE mistreating its loyal employees, the situation also constituted an abuse of the H-1B visa program. Specifically, he says tech companies are using it to get cheap labor, and in doing so, are displacing American workers. The program has minimum salary and qualification requirements to prevent a "race to the bottom" in American labor circumstances. Palmer says that these requirements, which are manifest in the H-1B Labor Certification process, are failing American workers--or at least the SCE employees that were laid off. The process' immediate purpose is ensuring that the presence of H-1B workers doesn't lower the average wage paid to Americans--or prevent equally-or-better qualified Americans from getting jobs (that H-1Bs are seeking). By making these claims, Palmer is implying that what happened at SCE goes against what the H-1B program is meant for--and is in general a bad thing for the country.

Being laid off is a sad situation, but it is a fact of life in a free market. SCE came to the opinion that its decision to use Infosys for IT staffing instead of retaining its current staff would allow it to cut costs, increase efficiency, or both. This will allow it to offer lower rates to its customers and/or return dividends to its investors. But, this is precisely the problem, according to Ron Hira, public policy professor at Howard University. "[T]he average [salary] for an H-1B employee at Infosys in FY13 was $70,882" but "the average [salary] of a Computer Systems Analyst in Rosemead, CA (where SCE is located), [was] $91,990 (according to the U.S. Department of Labor)." These numbers, along with the fact that Infosys doesn't sponsor very many of its employees for permanent immigration, led Hira to conclude that "the H-1B workers Infosys [hires] are being used as temporary, cheaper, disposable labor, not as a way to permanently introduce talent and innovation into the American labor market." The tech news site ComputerWorld calls this situation an "injustice."

Hira takes this a step further, saying that because "SCE's IT specialists were earning an average annual base pay of $110,446, Infosys [gets] a 36 to 41 percent savings on labor costs." However, this means the SCE IT specialists' base pay was $18,000 a year more than the average "Computer Systems Analyst" in their own town. Even ignoring this, however, the data provided is nowhere near enough to justify the claim that the H-1B program is to blame for the layoffs. To begin with, one cannot deduce how much the Infosys employees assigned to SCE are making based only on the average salary of Infosys employees in general. But this is somewhat irrelevant, because the Infosys employees are not even in the same occupations as the laid off workers.

The laid off workers were permanent IT staff, whereas Infosys is supplying SCE with IT solutions in the form of a cohesive temporary staff that emphasizes efficiency in order to cut costs. Working at a staffing agency does often result in lower wages, but it also results in more work opportunities, which is why it is an increasingly attractive option for managers and workers alike. The SCE case isn't one about foreign labor resulting in layoffs. It is instead an example of how the rise of tech staffing companies (that H-1Bs want to work for) is leading many to erroneously believe that the H-1B program causes tech layoffs. (We cover this issue as a whole in a separate article.) Thus, this case should not be seen as any reason to not raise the H-1B visa cap.

March 21, 2015

Some bad Bills now being Debated in Congress

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Some bad bills that may adversely affect our clients (and immigrants in general) are being put forth by the House of Representatives. We do not believe that any of these bills stands a good chance of becoming law, but it is important for the public to know what Congress is up to.


The "Legal Workforce Act:" HR 1147

This bill would harm tens of thousands of qualified workers by requiring their prospective employers to put them through the clunky at best and unreliable at worst E-Verify system. The system is a way for U.S. employers to check to see if their potential hires are qualified to work in the country. Though the system has existed for almost 20 years, errors are alarmingly frequent. In 2012, one half of one percent of attempted uses of the system resulted in its erroneously reporting that a foreign national was ineligible to work. This seems small, but because this mandate would affect 30 million new cases each year, around 150,000 people can expect to lose a chance at employment because of it.

The bill would cause these false-denial victims to be promptly dismissed from consideration for the job. Unsurprisingly, the vast majority of the error victims in 2012 were immigrants and foreign nationals of racial minorities. Even for those who managed to avoid denials, the rapidity of this implementation would tax the system, likely leading to widespread delays.


The "Honor of State and Local Law Enforcement Act:" HR 1148

This bill is like Arizona SB 1070--but would apply nationwide. It would authorize local law enforcement to "enforce federal immigration law" by arresting and detaining those who officers deem to be "illegal aliens." It is unclear what system, if any, officers would use to determine who to target. Beyond requiring the Department of Homeland Security to provide the list of people that it believes should be removed, no method of complying with federal enforcement priorities has been posited. What it does do, however, is eliminate officer liability for violating due process rights in pursuit of its enforcement.

If enacted, this bill would thus enable law enforcement to warrantlessly detain undocumented immigrants that have been granted deferred action under the president's executive action plan, if they so choose. The following was found on an official web posting aimed at stirring up support for the bill: "we trust state and local law enforcement officers to enforce every other category of law. So if we trust them to do all that, we should give them a role in enforcing our immigration laws. This just makes sense." The argument in fact does not "just make sense," because it fails to consider that this new authority would lack oversight and circumvent constitutional limitations to which officers are now subject.


"The Asylum Reform and Border Protection Act of 2015:" HR 1153

It is U.S. policy to grant asylum to those who can demonstrate a "well-founded" fear of persecution based on race, religion, political opinion, or membership in some group. This bill would make it harder for asylum seekers to appear before an immigration judge, where this determination is supposed to take place. Before being able to do so, seekers must go through a preliminary screening. If this bill were to become law, these screenings would be transformed from fact-finding opportunities to situations where asylum seekers must prove their case for asylum without the right to legal counsel. This may not seem so harmful until it is considered that asylum seekers have come long distances to escape persecution of all kinds--and could be placed in severe danger if sent back. Many of those who could prove their case before an immigration judge given the right circumstances would be sent into potentially severe danger if this bill became law. Even worse, it would require detaining these people while their fate remains uncertain.


The "Protection of Children Act of 2015:" HR 1149

This bill is a troubling offshoot of the preceding one: it would make obtaining asylum especially difficult for unaccompanied children. It would expedite the process for determining if they are at risk, giving the task to border patrol agents who, in the process of doing their difficult and dangerous jobs, may be unable to accurately determine this risk. There are several protections now in place that give children the right to a thorough determination of their risk of being persecuted or trafficked. The bill would instead treat these children as illegal immigrants found attempting to cross the border, even if no attempt at rogue entry is made.

March 20, 2015

A Small Win for H-1B Filers

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A recent case before a U.S. District Court illustrates the restrictiveness of USCIS regulations and its interpretation of statutes. Nonetheless, the judge reversed an H-1B denial, thereby validating as effective a few methods of supporting H-1B petitions. The judge in Washington State ordered USCIS to reverse its decision in denying an H-1B visa to a South Korean national wishing to work as a healthcare manager at an acupuncture and Eastern Medicine clinic in Lynwood, WA.

Upon review of the plaintiff's petition, the agency denied it on two grounds: that the position did not qualify as an H-1B-worthy "specialty occupation"--and that the foreign national (FN) was not qualified for it, even if it were. Regardless of the evidence for or against this point, the core of this argument appears to trip over itself, because few occupations are both too general for H-1B workers while also excluding most working adults from qualifying. One would think that only one of these claims would be made. Either way, the court examined and rejected the government's position on both of these counts.

It its denial of the petition, USCIS acknowledged that "most" of those who occupy the position of healthcare manager do have a bachelor's degree, but some apparently don't. Specifically, the agency held that a degree "isn't a requirement to enter the field." The response continued by saying that for those employers that do require a degree, it need not be in anything specific. USCIS seemed to be saying that a specialty occupation needs a special degree as a requirement for the job. The plaintiffs had argued that the job has special requirements that are fulfilled by the FN beneficiary's credentials. USCIS instead decided that the job did not have those requirements and that the beneficiary did not have those credentials.

Before getting into the court's analysis, it is worth taking note that the above sheds some light on what the USCIS officer reviewing the case may have been thinking when issuing the denial. It seems that when considering the nature of the occupation, it somehow came to the opinion that it was only considering a petition to fill an entry level position in healthcare management rather than reviewing one to fill the position of "healthcare manager." This is an important distinction.

As is usual when the agency isn't immediately impressed by a petition, a Request for Evidence was sent to the petitioning business. The specific evidence requested included the job description and position requirements, what makes it a "specialty occupation," the nature of the specific duties it entails, and information regarding the foreign national beneficiary's education and qualifications. Looking at the evidence that the government requested (along with their reasons for the denial), it seems likely that it did not take the business seriously. Our view is that the government thought the position was created for the purpose importing a specific person.

This of course would be a clear misuse of the H-1B program. At the time when the case was submitted, the agency had reason to be suspicious of many H-1B petitions. Due to the partial economic recovery, there was a spike in the demand for employment-based immigration. This increased the amount of time many immigrants had to wait until being able to work for their U.S. employers. Because of this, the H-1B visa was increasingly viewed as a way of side-stepping the waiting period. However, the visa exists only to supplement the U.S. work force with foreign specialized skills. USCIS seems to feel that the program is ripe for abuse--and that its mission is to prevent this.

It doesn't matter that there is no direct evidence of such abuse in this case. A healthcare manager at an acupuncture clinic doesn't perfectly fit the prevailing notion of what an H-1B position should look like. So, when the business responded with evidence of the specialty nature of the position and the credentials of the FN, the government appears to have grasped at straws looking for reasons to deny the petition. In issuing his reversal of the denial, the judge said that the agency plainly ignored evidence that a reasonable person would have seen as verifying the FN's credentials. The business had a Duquesne University professor verify that the FN's experience qualified her for the position--and provided certifications of the professor's competency in doing so. These certifications are what the judge found the government to have blatantly ignored.

The judge also found that USCIS' restrictiveness in its reading of regulations, if valid, would have unacceptably limited the amount of qualifying specialty positions. While this is a win for potential H-1B workers, there are two things that limit the intensity of our celebration. The first is that it isn't always economical to challenge USCIS in court like this, so many people may be victims of wrongful denials without means of recourse. The second problem is the H-1B cap. Until the cap is raised, simply filing a qualifying H-1B petition is no guarantee for a visa. It only guarantees entry into the H-1B lottery system that is now in use. Nonetheless, the fact that the plaintiffs won in this case will create a precedent that may save some FNs from experiencing an H-1B denial.

March 12, 2015

Getting Through EB-5 Business Plan Changes

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In this article we discuss the effect that USCIS regulations have on immigrant investors whose operations may need a course correction in order to fulfill the requirements of the EB-5 program--and how best to proceed in light of them. In another article, we detail the difficulty in the program that makes this an issue, and USCIS's reaction to it. The agency has issued guidance that is at best insufficient and dangerous at worst. The potential issues and inadequate government response to them necessitates independent analysis.

An example may prove illustrative: a typical EB-5 investor is running a restaurant. Over a year into the conditional residence period, the business isn't doing very well. A local university has opened a branch campus nearby, drawing in a few major restaurant chains. Students and original customers alike are flocking to these other restaurants. However, no new coffee-houses, where students spend a great deal of time and money, have appeared yet. In this case, converting the restaurant into a coffee-house would seem like the best bet. However, the I-526 business plan specifically envisioned a sit-down restaurant with tipped waiters.

Assuming the investor wishes to avoid the negative consequences of filing a new I-526 (detailed in the other article), the options are few. The most obvious one is to simply record the changes in the I-829 petition to remove residence conditions. However, this will intrigue a USCIS officer and invite serious scrutiny. Even if the evidence of job creation is rock-solid, this could lead to a denial. (Of course, failure to record such changes is even riskier.) The position apparently taken here by the government is "if there were changes, they had better have been worth it, though we reserve the right to deny." This seems unfair--and in fact is not necessitated by law. It is due only to an interpretation of USCIS regulation, which is often much stricter than statute.

The "no changes" requirement is an interpretation the following: "the business plan in the I-526 petition must serve as the basis for determining at the I-829 stage whether the investment has been sustained throughout conditional residency and that at least ten jobs have been created (or will be within a reasonable period of time) as a result." However, statute does not necessitate a job creation test at the I-829 stage. (This could be why the "within a reasonable period of time" standard exists.) While the job requirement itself does not appear subject to challenge, the reasoning above does.

Immigrant investors should therefore not have to fear denial on the grounds that they deviated from the approved business plan. But these denials do happen, and while some immigrant investors could be in a good position to challenge them, there is a better option than waiting for the condition removal stage. USCIS's view of the case could be gauged in the form of an I-526 amendment. If the amendment is sent in the style as a progress report with good news of job creation, the government's bias against business plan changes could be allayed. On the other hand, if the government reacts angrily, the investor would still have time to weigh his or her options. While the agency thinks business plan changes are grounds for I-829 denial, nothing in the regulations say anything about using those changes as grounds for revocation of conditional residence.

The preceding discussion applies (indirectly) to regional center investors. True, the ability to rely on "indirect jobs" (and the significant leeway attached to how and where they spring forth) prevents the job creation requirement from being a reason to deviate from the business plan. However, regional centers still sometimes fail to create enough jobs (or simply go under). In this sort of situation, an immigrant investor could use an I-526 petition amendment to explain what went wrong and show what plans he or she has to fulfill the requirements of the program. This seems sensible because of the "reasonable period of time" standard--and the fact that regional center failure is, at least on paper, someone else's fault. Not allowing the immigrant investor the chance to pick things up after these difficulties is not only unfair, it also goes against the spirit and intent of the EB-5 program. A denial in these circumstances would be ripe for legal challenge.

The advice in this article should not be seen as applicable in all situations. If any of this applies to your case, it is imperative that you seek legal representation. The attorneys at The Law Firm of Shihab and Associates have never lost an EB-5 case.

March 9, 2015

The Problem with Changing Plans (EB-5)

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Starting a business can be difficult. Sometimes an initial investment and a dream aren't enough to create permanent jobs (or even profits for the entrepreneur); success is often the result of trial and error. However, in the case of EB-5 investing, the potential for changes in business plan add an extra dimension of difficulty. The issue originates in filing procedure. A business plan must be submitted as part of the petition to start the process, before the immigrant begins conditional residence. USCIS will then expect that the business plan included in the original petition is followed in order to fulfill the job creation requirement to receive unconditional permanent residence.

The expected timeline for an EB-5 investor (that doesn't use a regional center) appears straightforward. A business plan must be drafted and $1,000,000 (or $500,000 for Target Employment Areas) must be secured. The investor then files the I-526 petition with this information, its approval implying that USCIS thinks the plan is feasible. Once this happens, the immigrant undergoes the normal process for obtaining a green card, though the one received at this stage is only good for two years. During those years, he or she must follow the approved business plan and create at least ten full time W-2 positions. If this has happened by the end of two years, the immigrant investor will receive approval on the I-829 petition to remove conditions on residence.

While many investors have been able to do this, in part thanks to competent legal counsel, the expectation seems somewhat unrealistic. It rests on the apparent assertion that it is possible to successfully predict two years' worth of economic activity (with no chance to course-correct as needed). USCIS holds that in order for the investor to stay eligible for successful immigration, there cannot be any "material changes" made to the approved business plan. (The term "material changes" lacks specific definition; unfortunately giving USCIS the ability to decide what it means on a case-by-case basis.) This makes things much harder for immigrant investors. Of course, one will be in good shape if the business plan can be followed lucratively enough to sustain 10 permanent jobs. Short of abandoning the project, however, this leaves someone whose EB-5 business is in need of improvements to the original plan with two options: either report the deviations in the petition to remove conditions--or don't. USCIS has implied that both of these increase the chance of denial.

The world is rapidly changing, and in order to stay successful, businesses must claim every competitive advantage within reach. The above practice goes completely against this. The difficulty is easy to see, so the government responded by saying that immigrant investors who need to update their business plan may submit a new I-526 petition. However, this does not represent the giving of any ground on the issue. If the agency felt that its policy of expecting that there be no "materially changes" in a business plan for two years might be problematic, one would expect it to define what material changes are in a manner consistent with today's business demands.

USCIS could have taken this opportunity to give the term a definition that prohibits only the biggest changes like moving to a different region or economic sector. Instead, we are left with one that makes all changes "material." This means that something as simple as expanding a gas station to include auto repairs (in order to bolster job creation and customer base) would require a new petition. This may seem like a good idea until the consequences of doing so are considered.

  1. Permanent residence would be delayed by at least two years;

  2. Conditional resident derivative children who are now over 21 would not be eligible to obtain another period of conditional residence;

  3. The five year period of continuous residence required for citizenship would not include the time elapsed under the previous period of conditional residence; and

  4. There is no legal guarantee that the new I-526 will render the immigrant eligible for a new period of conditional residence (giving the immigrant no way to challenge a decision to deny).

It should be abundantly clear that this does not solve the underlying problem. The expectation for an immigrant investor to not adapt or improve his or her business (without starting a new period of conditional residence) does not advance the interests of the country--and instead creates undue difficulty for those whose presence is good for the economy. Our recommendations for affected EB-5 investors in light of this can be found here.

February 24, 2015

H-1B Visa Audit Update: Navigating the Unprecedented World of an Absconded H-1B Employee

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A recent litigation regarding an H-1B visa audit, also known as a Labor Condition Application (LCA) Audit, raised a question that case law has not yet adequately addressed, even though the case isn't unique. The case law in this area seems to muddle the facts without clearly addressing an employer's obligation to pay the H-1B visa employee when he or she disappears and is never heard from. But prior to delving into the facts of our case, a review of the employer's obligations is in order.


When does the Employer's Obligation to Pay an H-1B Visa Employee Terminate?

The LCA obligates employers to pay H-1B employees an amount at least equal to the "prevailing wage" for their positions. (The Department of Labor (DOL) determines this wage.) There are two situations in which this obligation is known to be exempted. The first applies when an employer effectuates a bona fide termination of the employee. The second is when the employee experiences a period of nonproductive status due to conditions unrelated to the employment which take the employee from his or her duties (e.g. touring the U.S. or caring for an ill relative etc.) or render the nonimmigrant unable to work (e.g. maternity leave or an automobile accident etc.). The regulations, however, do not clearly address a situation in which the foreign national disappears.


The Facts of Our Case

In our case, an H-1B visa employee filed a complaint against our client, her employer, with the DOL. She alleged that the employer failed to pay her in accordance with the LCA. After a lengthy (and faulty) investigation, the DOL administrator alleged that none of the payment exceptions applied to the employer. In making this claim, the Administrator relied on the holding in Gupta v. Compunnel Software Group, Inc. that the burden of proof (to show that the payment obligation exception applies) rests on the employer. In this view, the employer must show that it had work that the employee was unwilling or unable to complete.

Additionally:

  • The employee had an F-1 Optional Practical Training (OPT) work authorization, and its validity extended eight months into the start of her H-1B status.

  • While her OPT was still valid, she was placed as a consultant at one of the employer's vendor's work sites, but she lost this opportunity, arguably due to her own actions. This opportunity was going to extend into the approval period of her H-1B.

  • After her H-1B became valid, she absconded and was patently unavailable for employment because she was unresponsive to the employer's attempts to market her for a new employment assignment.

  • She moved to stay with her lover in Chicago (which is over 600 miles from her employer's worksite). They later relocated, married, and divorced after four years.

  • Finally, several years after her disappearance, she contacted the employer requesting some documentation. At this point the employer proceeded to effectuating a bona fide termination.

Because no case law provides relevant guidance, this case presents two pertinent legal issues in the H-1B program:

1. Whether the DOL has Jurisdiction over H-1B non-immigrant Employees with Concurrent Immigration Statuses

Generally, immigration statuses fall under the authority of the Department of Homeland Security (DHS). However, the H-1B program carves a separate function for the DOL, pertaining to approving the LCA for H-1B workers. An even more specific framing of the issue demands examining whether the DOL has jurisdiction over non-LCA related cases. The short answer is "no."

OPT is an employment authorization that is approved by the USCIS, an agency under the DHS, for a period of 12 months (or 18 for STEM students). USCIS has the authority to make all procedural and investigative decisions pertaining to OPT authorizations. Because the DOL does not have any authority here like it does in H-1B cases through LCA approvals, it does not have concurrent jurisdiction.

Thus, in our case, the DOL lacked the jurisdiction to assert any back wage liability on the employer because the employee's immigration status when she fled (OPT) fell only under DHS authority.


2. Whether the Obligation to Pay the Prevailing Wage still Rests on an Employer if an H-1B Employee Refuses to Avail Themselves to Employment by Patently Failing to Respond to the Employer

The DOL Administrator relied on the holding in Gupta v. Compunnel to set forth the argument that the employer was obligated to pay the employee. Under this test, the employer must first show that the employee had a job assignment--and then show that the employee did not avail themselves to that assignment. The case at bar presents a separate set of facts.

In our case, the employer placed its employees to work at its clients' worksite on a contractual consulting basis. An employee must interview with the employer's clients before any job placement can occur. This is a common practice. The H-1B employee instead disappeared and was unresponsive to recruitment calls.

The Gupta reasoning and holding should not apply to this case because it is impossible to show that the employee had a job assignment because it was impractical for the employer to compel the employee to pick up recruitment calls, given that she had basically disappeared. Also, to bend the facts of this case to fit around the test set forth in Gupta would be placing an undue burden on employers by forcing them to be responsible for employees' actions (or inaction).


Our View of the Matter

In the absence of applicable precedents, the letter of the law trumps. The text of the exemption statute reads:

If an H-1B nonimmigigrant experiences a period of nonproductive status do to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative)... then the employer shall not be obligated to pay the required wage during that period, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act.

In this case, the H-1B employee voluntarily placed herself in non-productive status by leaving her site of employment to be with her lover in another state, relocated (easily characterized as touring), and her actions (following her lover) and inactions (not picking up recruitment calls) were undoubtedly not related to her employment. Thus, we believe a payment exception should apply. A court's ruling on this case would be the first time the general issue is properly addressed.

February 21, 2015

The Errors in the Ruling Against Obama's Plan

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This article contains our discussion of the problems in Judge Hanen's ruling on President Obama's immigration executive action plan. (The judge placed an indefinite injunction on DAPA and the DACA expansion, thereby delaying their start. The DACA expansion was supposed to begin on the 18th of this month.) As we have made clear in another article, we expect this ruling to be reversed. This article contains the bulk of why we are confident that the administration will prevail in the end.

At the center of this case is the whether the administration is acting within its legal authority to expand DACA and create DAPA. But, the issue of standing (which in this case is whether the states the plaintiffs represent have been harmed by the action) must be settled first. A sheriff in Arizona recently tried to sue the administration on similar grounds but the case was thrown out because he couldn't prove that his ability to enforce law was harmed in any way. Judge Hanen, on the other hand, did grant the plaintiffs standing, in part by agreeing with their view that the states will have to pay to educate "illegal alien children" as a result of the administration's actions. This disregards the Supreme Court's ruling in Plyler v. Doe that it is a constitutional requirement to educate all children. Thus, this particular "harm" comes from nothing less than the Constitution. In general, we think that there is no true injury done to the 26 states on account of the executive orders. Further, when Mississippi sued the administration over the original DACA plan in 2012, the courts found that the state could not demonstrate any harm done to it either--and threw the case out.

Even if standing is assumed to be a non-issue, there are still problems with Hanen's ruling. The heart of it deals with an alleged violation of the Administrative Procedure Act. This act holds that some proposed or forthcoming executive rules must be published in the Federal Register, allowing for dialogue with the public before implementation, which can take many months. There is no wide agreement or clear-cut Supreme Court guidance on what needs to be put through the Federal Register, so his ruling isn't absurd. That he gets it wrong, however, isn't difficult to discover.

The publication requirement only applies to binding, new rules, which are called "legislative rules." It does not apply to "interpretative rules," which are just guidelines or clarifications of policy. The administration argued that the initiatives in question fall under "interpretative rules," and we share this view. Judge Hanen instead ruled that they fall under "legislative rules" and that granting work permits to undocumented immigrants under them is new policy. Thus, he concludes, they ought to have been put into the Federal Register. Because they were not, he has put an indefinite hold on them. We disagree with this view.

To begin with, granting DACA or DAPA isn't the same as conferring immigration status. It is an exercise of prosecutorial discretion, which Judge Hanen acknowledges the executive has. Though all undocumented immigrants are eligible for deportation, the executive's right to prosecutorial discretion gives it considerable leeway as to when--or even if--this takes place. For some reason or another, the government may be convinced that it isn't in U.S. interests to deport an undocumented immigrant, and when this happens it may be called "deferred action" (because the action of deportation is being postponed, perhaps indefinitely).

Deferred action programs (such as DACA and DAPA) are nothing more than dialogues between executive and immigrant, where immigrants get the chance to demonstrate that they meet the executive's criteria for not being a deportation priority. It may then respond that it's convinced, promising not to deport. But because this represents no real legal change, it could deport anyway. This is something it cannot do to those with valid status (and no violations). Changes in prosecutorial discretion have nothing to do with new U.S. policy--and everything to do with what the executive interprets is the best way to accomplish its task at promoting U.S. interests. Thus, deferred action programs fall under interpretative rules, and not legislative rules.

Once it is accepted that deferred action programs alone are only interpretative rules, Hanen's further objection concerning work permits for illegal immigrants falls apart. Current law (§274a.12(c)(14)) deems that those who are in a state of deferred action are eligible for work permits. While they may sound similar, referencing an existing law is very different from creating a legislative rule. It is difficult to see how Hanen arrived at his conclusion with all this in mind. Because the immigration plan did not need to go through the Federal Register, we find that Hanen's injunction is groundless.

February 21, 2015

Analysis of Injunction Against New Deferred Action

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On February 16th, a judge in Texas issued a temporary injunction against parts of the President's immigration executive action plan, including DAPA and the DACA expansion. This means that they cannot take effect until this court or a higher one eventually rules in favor of the Obama administration or puts a stay on his injunction (which would essentially cancel it). This also means that we had to update our post from February 6th, which talked about the changes' planned start on the 18th and how to prepare for them. However, the post's main point is still that the administration was expecting the programs to go on without serious difficulty. It did so knowing about the legal challenges, meaning that it likely viewed them more as political frustration than valid legal analysis. This is an assessment that we share.

Shortly after the initial announcement, a group of Republican Governors and Attorneys General from 26 states got together to file a lawsuit against it. While there are many potential reasons this group of Republicans could have spent so much time fighting the executive action, it is likely not based on a true understanding of economics or the law. (We have written articles on why we think the action is both legal and economical.) So, the fact that they succeeded in at least delaying it may come as an unfortunate surprise for the plan and the millions of people who would benefit from it. However, some analysis will show that this ruling is little cause for concern.

There are two keys to understanding the ruling. The first is the identity of the judge: U.S. District Court Judge Andrew Hanen. This judge is known for calling Obama's immigration enforcement policy "dangerous and unconscionable" and for saying that his administration "should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws." He has also taken the opportunity to issue general swipes at U.S. immigration policy in several rulings, even though the cases did not require his opinion on those matters. The second is the nature of the way the case wound up in his lap.

Because their suit is against the federal government, the plaintiffs were able to file it in any U.S. District Court in any of those 26 states. Thus, it should not come as a surprise that they chose to file in Hanen's court. When it became publicly known that the suit would go through him, several observers took considerable note. Some complained that it was an unapologetic case of "judge-shopping."

Hanen responded to this by suggesting that his district's inclusion of a border-town (Brownsville, Texas) makes him an ideal judge for case, in part by giving him valuable insights on the topic of immigration. "Talking to anyone in Brownsville about immigration is like talking to Noah about the flood," said Hanen. This fails to consider that there are many border towns and that Brownsville isn't the biggest crossing point. In fact, a neighboring judicial division covers almost twice as much border and contains two thirds of the Rio Grande Valley, which Fox News recently said is being "flooded" by an "endless wave of illegal immigrants." However, had the case been filed there, the plaintiffs wouldn't have gotten Judge Hanen.

Admittedly, the above isn't sufficient to show that Hanen's ruling is bunk, let alone that it will be reversed. So, we have examined the ruling in a separate article. Mindful of this analysis, we expect that the administration will ultimately win on appeal. In fact, the Circuit Appeals Court in New Orleans may soon put a stay on the injunction, allowing the plan to go ahead while the appeal is pending. Thus, we believe this to be only a minor setback. Those who will be eligible for DAPA and the DACA expansion should continue preparing to file. We published recommendations for doing so in the article from the 6th.

There are two closing points. The first is that there may soon be a spike in Notario activity, given that many undocumented immigrants were expecting to be able to file under these initiatives. A great deal of them may be confused as to where they stand, which is what the Notarios took advantage of at the start of DACA. We have an article about Notarios here. Lastly, this ruling does not affect the original DACA program. Those who were in the process of filing DACA renewals can go ahead as planned.

February 16, 2015

The Advantages of Using a Regional Center (for EB-5)

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EB-5 is an immigration option for those with the resources to invest in U.S. job creation. It allows an immigrant to be eligible for permanent residence if he or she invests at least $1,000,000 in the U.S.--and with it creates at least ten jobs. (The monetary requirement is half if the investment is made in a designated "Target Employment Area," which is either rural or suffering from an unemployment rate at least 50% higher than the national average.) There are two ways to do this: by going it alone with individual or "Direct" investment, or by using a Regional Center. We have said before that those who wish to immigrate in order to invest should use direct investment, while those who want to invest in order to immigrate should consider using a Regional Center. Both sides have their advantages, but the Regional Center option is viewed as a safer bet--with greater support from others--than the alternative.

A Regional Center is a government approved economic entity that takes in foreign investment and outputs domestic job creation. In contrast with EB-5 Direct, Regional Center immigrant investors do not need to be more than minimally involved in managing the investment. Most Centers boast several apparently effective schemes for protecting and returning investor money, each with varying levels of risk/potential reward. However, it is not possible for an immigrant investor to avoid risk altogether. (The government requires that the money be at risk for green card eligibility.)

Another key attraction of the Regional Center program, as opposed to EB-5 Direct, is its more inclusive definition of job creation. Under EB-5 Direct, all ten required jobs must manifest themselves as actual employees of the company or enterprise being invested in by the immigrant. These are called direct jobs. However, for Regional Center investors, "indirect" jobs may also be counted.

To be countable, an indirect job only needs to exist as a result of economic activity produced by the investment. These jobs often come from businesses that emerge in order to service the direct job creator. While obtaining a green card is easier with the ability to count indirect jobs, it is somewhat difficult to prove that their existence is due to the investment. But that's why successful Regional Centers often have access to state-of-the-art economic impact programs that can calculate indirect jobs based on the quantity and qualities of already created--or planned--direct jobs. However, the more a Center relies on indirect jobs, the weaker its ability to prove its connection to them becomes.

Getting the investment process started can be easy. Several websites host a list of approved Regional Centers and their contact information, like this one: http://www.eb5greencard.com/regional-centers/regional-center-list.php. Many Centers have quality websites and market themselves well, but unless an immigrant is sure that a particular one is a good financial bet, several precautions should be taken. It may be a good idea to hire an expert to evaluate its history, financial situation, and investment offerings. However, some things must be ascertained before a foreign national commits to invest. They are

  1. The reputation of project leadership;
  2. The Center's business plan and economic impact calculation methods;
  3. How long the average investor's funds are used;
  4. The immigration success rate of people that have used the Center;
  5. How it plans to extract the correct amount of money from the project (to be returned to investors); and
  6. What financial securities investors have.

While the immigrant's making a profit is very important, the main issue here is his or her ability to achieve unconditional permanent residence. In order for all of a Regional Center's immigrant investors to fulfill the requirements of the EB-5 program, there needs to be at least ten times as many jobs created as there are constituent investors. It is obviously possible for this to not happen, and there must be a plan for this event. These are matters that an immigrant investor and his or her immigration attorney should discuss before any concrete plans are made. The Law Firm of Shihab and Associates has never lost an EB-5 case--and is happy to assist new clients.

(It is also possible for an immigrant investor to start a new Regional Center. If this is done well, he or she should be able to "have cake and eat it too" by having control over the project while reaping most advantages of using a Regional Center. Check out our article on the subject here. In addition to this, we have two articles on EB-5 Direct here and here.)

February 10, 2015

Two Potential Issues with Alien Workers

magnifying-glass-967211-m.jpgLCA Compliance

Something that all H-1B and EB-2/EB-3 immigrant sponsors must keep track of is compliance with labor condition application (LCA) regulations. The labor certification process is designed to protect U.S. workers in two ways. It makes sure that aliens aren't taking jobs that qualified U.S. workers are seeking and aren't working for less than the usual or "prevailing" wage in their position. In simple terms, U.S. immigration policy tries to give employers no economic incentive to hire foreign workers (except for qualifications and desire for the position). LCA enforcement is how this is accomplished, and the Wage and Hour Division of the Labor Department (WHD) will initiate investigations if it suspects any lapse in LCA compliance. Penalties for violations are mostly monetary--but may include the loss of a company's ability to hire foreign workers.

The plight of delinquent companies that knowingly violate LCA regulations isn't the focus here. There are many companies that apparently didn't know that they were in violation--and went on to contest their violations. (In fact, the only time the public hears about the details of one of these cases is if a violation is contested and the case goes to hearing.) Here are some common LCA issues employers sometimes stumble into.

  1. Employers can get in trouble for deferring paying labor-certified employees--as may happen during a contractual disagreement, even with full back-payment coming as soon as an agreement is reached. The WHD is all too eager to view things like this is as employers giving themselves more leeway with alien workers (than with U.S. ones). The payment arrangements detailed in the approved petition should be followed. If this isn't possible, any deferred payment should come with interest, at the very least.
  2. The specifics of the employment plan must be hammered out long before the employee is expected to start work. He or she must be prepared to carry out the agreement detailed in the approved petition--or redo the whole petition process.
  3. H-1B workers must be paid with U.S. currency. There have been cases where initial payments were made in foreign currency through overseas accounts. This has been found to be an LCA violation on several occasions.
  4. Not only must employers pay H-1B filing fees, they must pay all recruiting fees--if there are any--even if the recruitment happened overseas. The employer must bare nearly all the burden of receiving the foreign worker.

FDNS Investigations

H-1B and EB-2/EB-3 employers must also be able to show that a "bona fide" (or actual) employment relationship exists--and that everything is as it seems on the approved petition (in other words, that there is no fraud). Enforcement of this falls to the Office of Fraud Detection and National Security (FDNS) at the State Department. Its investigators visit and conduct interviews with workers as well as officers, sometimes without giving the officers enough time to prepare workers for said interviews. Extra care should be taken to prepare for them because they can be the deciding factor on how the government views a case.

Sponsor company owners or other higher-ups may be held personally liable for foreign labor violations. Sole owners, and/or those who controlled matters of staffing and salary (during the violations), are most vulnerable. (It can also be expected to happen to those who ignore corporate regulations, including but not limited to, intermixing corporate and private funds or working through many interchangeable business entities.) Thus, the following tips may prevent much personal difficulty in an FDNS situation.

  1. Consult immigration council as soon as FDNS interest in the company becomes clear. Determine the purpose of the visit, collect investigator contact info, and tell him or her that the company needs to have a conference with counsel before any personal information is given. (Investigators should be told that the company will get back with them within the next few days.)
  2. All the information supplied on form I-129 (and supporting documentation) should be easily verifiable by any investigator.
  3. Have a go-to person in charge of LCA and FDNS inquiries. This should be the person signing as the company representative on USCIS forms.
  4. There must be an established and readily communicable hierarchy of supervision, detailing who supervises the foreign worker, and who supervises that person, etc.
  5. Give foreign workers a protocol on responding to government inquiries, in part to ensure that they don't contradict each other to investigators. The workers may be contacted at home, so they should keep a "cheat sheet" of responses there.
  6. At the end of the investigation, request a private closing conference with the investigator. Offer to provide any additional information. Attempt to ascertain how he or she thinks the investigation went, and confirm that they have no further questions or concerns.

Above all, employers should share all LCA or FNDS investigation details with immigration counsel, such as The Law Firm of Shihab and Associates. Good counsel can be the key to getting through these situations violation-free.

February 6, 2015

Deferred Action Update

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Citizen and Immigration Services (USCIS) has released an official update on the President's immigration executive action plan's enforcement rollout. (These details were unofficially released with the plan's original announcement last November.) USCIS' posting of this update represents its expectation that the mentioned changes in immigration enforcement are here to stay--and that it is working to implement them. The publication mostly concerns its aspects addressing undocumented immigrants.

On February 16th, a judge in Texas put a temporary hold on these parts of the plan. We have a general analysis of the situation here--and a review of the problems in the judge's ruling here.


DACA Expansion

Deferred Action for Childhood Arrivals, the program that allows certain aliens--that are otherwise deportable--to defer the initiation of removal from the country, will soon be expanded and updated. Previously, it covered a very specific group of people. It was only for undocumented immigrants (1) born since June of 1981 (2) who were taken to the U.S. as children 15 or younger (3) that have maintained a continuous U.S. presence since June of 2007. The expansion has made it so that all undocumented immigrants can apply to defer action--regardless of current age.

Undocumented immigrants will still have to show that they came before the age of 16--but now only need to prove continuous presence starting January 1st 2010. In addition to this, all periods of deferred action will span three years instead of the former two. Concurrently granted employment authorization documents (EADs or work permits) will also cover three year periods. These temporal expansions will cover all future grants of deferred action. Those who wish to seek deferred action under the expanded requirements would have been able submit petitions starting February 18th, but the beginning of the program has been postponed until the legal proceedings finish.


DAPA

Inspired by DACA, Deferred Action for Parental Accountability will work the same way. Undocumented immigrants will be able to petition for deferred deportation in three-year increments, abiding by the same continuous presence requirement. (They too will be eligible for work permits.) The difference is that eligible people will instead consist of undocumented immigrants that had, at the time of the executive action's announcement, a U.S. citizen or permanent resident child. USCIS had planned on beginning to accept DAPA applications in "mid-to-late May," but this could be delayed due to the legal proceedings.


Recommendations

Petitions should be sent as soon as possible. This of course means that the required evidence must be gathered with the same haste. However, evidence of arriving before the cutoff age has been a somewhat difficult task for many seeking DACA, and it promises to be harder for those who arrived a longer time ago, as the expansion now allows. While it isn't much in terms of a legal shield, applying for DACA shows an alien's desire to follow the law (short of uprooting him or herself and moving to a land he or she hasn't called home for many years--if truly ever). While those granted deferred action are still "illegal aliens," if they receive the near-universal accompanying EADs, they no longer must work illegally. This benefit will not only reduce the risk of run-ins with law enforcement--but will bestow economic advantages as well.

Seeking deferred action can be considered a sign of cooperation with U.S. national security and immigration policy goals. While not outright stated, the inverse is probable: refusing to seek it (while also refusing to leave the country) is likely considered a sign of defiance. While unfair, the government may have an unspoken policy of "if you have nothing to hide you have no reason to avoid investigation." Thus, it is our overwhelming recommendation to seek deferred action as soon as possible. The Law Firm of Shihab and Associates stands ready to review new cases and submit at the opening of applications.

While the acceptance of DAPA petitions will not start for another few months, it is never too early to begin gathering the necessary evidence. It can be difficult to provide some of it, even that which proves the required familial relationship. It is also unclear whether there will be an age requirement for children referenced to obtain DAPA (though there will likely not be). In other places, two additional requirements have been mentioned: (1) passing a background check and (2) the payment of back-taxes. But, on these points this update is silent.

Some undocumented immigrants were brought to this country before the age of 16 several decades ago and have lived here ever since. Most of these people likely have U.S. citizen children by now, meaning that they are eligible for both DAPA and expanded DACA. For these people, it would likely be true that DACA is more desirable due to its lack of back-tax and background check requirements. However, it seems that the likelier someone is eligible for DAPA (via age), the less reliable his or her evidence of arriving before age 16 becomes. Decisions such as which program to apply under and how to fill its requirements are best left to competent immigration counsel.

January 26, 2015

Why We should Increase the H-1B Cap

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Once again, Congress is considering a bill to raise the H-1B visa cap. The sponsors of this bill are three Democrats and three Republicans, the group of six being spread out across the ideological spectrum. (The primary sponsor is Orrin Hatch, who is the 29th most conservative of the 100-person chamber, and one of the co-sponsors is tied for fifth most liberal.) One would thus think that the bill has high hopes. However, if things go the way they have the last couple of times a cap raise was proposed, the bill will be shelved before any serious progress can be made. It seems that there is a general fear that allowing more H-1B workers into the country amounts to outsourcing or otherwise harms U.S. workers. However, a plain consideration of all the evidence should lead one to support raising the H-1B visa cap.

The first point to consider is that the current H-1B cap of 65,000 (with an additional 20,000 for workers with master's degrees) is the same as the cap from the mid 90's. In other words, it's terribly outdated. The cap was first reached in 1997 and hit again in 1998. In response to this and increasing demand for IT workers, a law was passed to temporarily increase the cap to a height of 115,000 until returning to 65,000 in 2002. There were several reasons for instituting a temporary cap; one of those being the possible threat of Y2K related difficulties and outages, another being the experimental nature of Congress' intent. However, the higher cap accompanied the .com bubble's collapse and 9/11. Because of these and other issues, the political will and apparent need to import more specialized laborers was low at the end of the program, so the cap was not revisited.

H-1B visas are good for three years and one-time renewals are cap exempt, so the full effect of returning to the old cap wasn't felt until 2008. It may be a "cheap shot" to say this, but the reduction of H-1B workers in the country seems to have coincided with the financial collapse and the recession rather than a boon for U.S. workers. But this needs to be said, because there is significant opposition to increasing the H-1B cap on economic grounds.

This view is based on the claim that foreign workers "take" jobs from their U.S. counterparts, leading to unemployment and further strife. However, this view seems to ignore the labor certification process, which ensures that there is no U.S. worker attempting to get the job sought by the foreign national. It also makes sure that companies don't pay foreign workers less than they would for U.S. workers.

Some H-1B opponents seem aware of this--but are still unconvinced. They don't believe the labor certification process is effective--and instead argue that employers can still get away with paying less for H-1B labor. If this were true, one would expect H-1B petitions to increase during the recession. It would be a perfect time to replace expensive U.S. workers with cheap foreign labor. However, this did not happen, as H-1B petitions in fact decreased during this time. For fiscal year 2011's H-1B season (of petitions sent in 2010 for employment in 2011), it took almost ten months for the cap to be reached. In stark contrast, the cap was reached less than one week after the start of the most recent H-1B season.

When a company cannot hire an H-1B worker, in many cases it will not be able to proceed in the business plan or project that he or she would have worked on. The worker will likely instead work in a different country but in the same field, meaning that he or she will help a foreign company compete against an American one. If the U.S. were to allow this worker into the H-1B program rather than turning him or her away, there might be one more American innovation or marketable product. These things attract investment and create jobs requiring less specialized skills, which are ones that American workers can more easily fill.

The proposed legislation would increase the cap to 195,000 and uncap those with advanced degrees in STEM (science, technology, education and math) fields. It is our view that it should be passed right away. Under President Obama's immigration executive action plan announced last November, the labor certification process is being "modernized." It should provide greater protections for U.S. workers than the old process, so very few U.S. workers (if any) would be displaced by an increase in the H-1B cap.

January 22, 2015

Working in a "Critical Field" as a Cause for Visa Delays

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In the years since 9/11, there have been ongoing efforts to improve U.S. security and make the visa processing system more efficient. Several government agencies have teamed up to create new all-encompassing databases--and have been engaging in a continuous review of immigration and visa issuing practices. Along with new requirements in the system, such as interviews and other security checks, these things have caused ever-increasing delays in visa processing and issuing. Though apparently unexpected, this result is not surprising. However, one issue in all of this stands out as having the potential to cause much unforeseen and bewildering difficulty: the Technology Alert List (TAL) and export control.

The TAL has historically been a way for the U.S. to keep track of technologies developed within its borders that could be (violently) used against it--and to prevent them from falling into the wrong hands. The current TAL is in fact two lists in one: one is the list of "state sponsors of terrorism," and the other is the Critical Fields List (CFL). The CFL is an extensive set of fields of study and industry, each capable of producing what are known as "dual-use" technologies. The first use of a dual-use technology is for standard economic purposes, and the second is for war. The CFL consists of

Conventional Munitions;
Nuclear Technology;
Rocket Systems;
Chemical, Biotechnology and Biomedical Engineering;
Robotics;
Remote Sensing, Imaging and Reconnaissance;
Advanced Computer/Micro-Electronic Technology;
Materials Technology;
Information Security;
Laser and Directed Energy Systems Technology;
Sensors and Sensor Technology;
Marine Technology; and
Urban Planning.

At this point, the reader may be wondering how this can cause issues with visa processing. Considered alone, the CFL's connection to it is unclear. Export Control is the missing link in all of this. Products developed in the U.S., while sometimes not government property, always fall under its commerce authority. The government regulates them, and this regulation includes deciding whether foreign workers can come into its borders to work with these products.

When a foreign national (FN) starts the process of obtaining a non-immigrant visa at a U.S. Consulate or Embassy, the officers have the ability to check to see if the applicant's U.S. employment plans involve anything that might be dual-use. This is because they have the duty to check for legal inadmissibility to the U.S., and grounds for inadmissibility include an FN's attempting "to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information." This clearly includes the CFL. So, if the FN's plans in the United States involve something on the CFL, consular officers will undergo their procedure for when an FN is suspected of being inadmissible. This procedure is to create a Security Advisory Opinion (SAO).

In theory, this is only done when necessary. In practice, their policy is to always initiate an SAO unless the consular officers are 100% sure that the immigrant's plans in the U.S. aren't CFL related. If there is one created, the processing time for a temporary worker visa normally increases by at least 3-6 months, if the case isn't outright denied. Further, when the delay is due to an SAO, there is almost no way to tell. The only thing one can do about this is to take steps to avoid an SAO in the first place.

The first step is to know whether a non-immigrant's work in the U.S. could be construed as CFL related. A good way to evaluate this is to do the same thing as consular officers: just assume that it is (CFL related) unless there is a 100% chance that it is not. If it is, then the employer is advised to submit a report of technologies that the FN will be working with to the Department of Commerce, asking if they have dual-use purposes. (Not all things in the CFL are dual-use, after all.) Hopefully the answer is no, but if the answer is yes, options dwindle--but aren't exhausted yet.

If an FN with a pending visa has a CFL dual-use issue, additional evidence may be required to swing the case in his or her favor. It is advised to gather as much detail as possible on what the FN will be doing and to find U.S. sources to back this up as industry standard. This information could be brought to a visa interview and/or be included in the petition. Also, it would be very helpful to show that the dual-use aspects of the technologies the FN will be working with are already public information or able to be found in an academic course. If this is possible, then it can be shown that giving the FN trouble over CFL issues won't do the U.S. any good.