Immigration Visa Lawyer Blog

I have heard many of my clients who frequent our offices in Ohio, Michigan and Washington, D.C. and who sponsor H-1b workers attesting to the valuable contributions introduced by the employment of foreign labor. It is a myth that companies who employ foreign nationals do so to exploit cheaper labor. The truth is, employers who seek skilled foreign labor normally do so only after exhausting the available US labor pool and only in seeking scarce highly skilled workers. It has been documented that H-1b workers foster growth in the US economy by projecting new products and services into the market place.

With so many documented benefits, and as the national unemployment rate increases during the current downturn in the economy, the US Department of Labor ("US DOL") Wage and Hour Division will be more apt to stepping up investigations of companies who regularly employ foreign nationals relative to H-1b violations. Yet with so many audits coming down the pike, few are able to find what my clients call a "competent Department of Labor audit lawyer."

The main mission of the Labor Department is to protect the interests of the US workforce and to assure that the employment of foreign nationals does not adversely affect the working condition of US citizens. If the reader of this article has never had experience with a Labor Department audit process also known as the LCA compliance investigation, LCA audit, or H-1b audit, he or she cannot begin to comprehend the nightmarish impact and disruption such process has on a business. It is a very difficult process for an employer to endure both financially and psychologically. The penalties and back wages are often six digits.

The thrust of the US DOL audit (H1b audit) is to discover employer violations of any of the regulatory directives implicit in the LCA attestations. Employers who sponsor H-1b workers know that these requirements are several. For instance, H-1b sponsoring employers must maintain a "public access file" containing certain records; the employer must also maintain updated approved LCAs when the "worksite" of the H-1b employee changes and must pay "prevailing wages." The employer may not "bench" H-1b employees and is considered in violation of the regulations.

Continue reading "Effective Legal Representation is Key to Defending LCA Department of Labor Investigations (H-1b Audit or LCA Audit)" »

The deadline to submit H-1b petitions subject to the annual cap for federal fiscal 2010 is April 1, 2009. Many employers are playing a game of "wait and see" as news of high unemployment rates and "gloom and doom" on the economic front are on the front page headlines. But when one looks at the facts, some cities have much better outlook economically than others. Shihab & Associates, Co., LPA has offices in two of such "more fortunate" cities: namely Washington, D.C. and Columbus, Ohio. But because of the economic conditions of these cities, our firm has instituted a system to handle a large volume of H-1b visa filing for the April 1, 2009 H-1b visa filing.

MarketWatch online magazine has ranked all major US Cities in terms of business opportunities. Minneapolis-St. Paul was ranked first. Among the top cities for business opportunities, the following cities appear: Boston, Ma., Denver, Co., Washington, D.C., Richmond, Va., Charlotte, N.C., Columbus, Ohio, Nashville, Tn. tied with Dallas, Tx., and San Fransisco, Ca.

There is another good reason to believe that H-1b petition filing and hence employment of foreign nationals will remain strong in these cities. Unemployment rates issued by by the Bureau of Labor Statistics for these cities remain well below the national average. It is a known fact that unemployment figures for high tech positions are at least half of the national averages. For instance, the unemployment rate for Washington D.C in October 2008 is 4.1%. Based on the aforementioned ad hoc formula, the unemployment rate for high tech positions in Washington, D.C. is about 2%. It is therefore expected that these cities will offer high employment opportunities for US citizens and foreign workers alike. With such low unemployment figures for these more fortunate cities, it is very likely that H-1B visa petition filings for employers coming out of these cities will remain unchanged.

Continue reading "H-1B Petition Filing Predicted Unchanged for Washington D.C. and Columbus, Ohio Among Certain Other US Cities" »

Notwithstanding the downturn in the economy, many companies and research institutions in cities such as Columbus and Cleveland in Ohio or even Detroit, Michigan continue to aggressively recruit engineers and scientists from all over the world. There is much demand for at least a temporary increase in the number of H-1B visas available. Legislation has been introduced, but rejected several times in recent years. Until Congress in Washington DC does something to alleviate the demand for more H-1B visas, employers seeking to hire temporary workers on H-1B status face much frustration over getting applications filed before the H-1b cap is reached. If you want to have a chance to file an H-1b petition this year, you will need to engage an immigration attorney by January and file your case before April 1, 2009. Students on Optional Practical Training should not wait until their status is close to expiration.

There are currently 65,000 H-1B visas available each year. In addition, there are 20,000 H-1Bs available for persons holding U.S. advanced degrees (e.g., master's). Once the 20,000 visa cap is met for advanced degrees, persons holding advanced degrees can still obtain H-1B visas, but those visas will then be taken from the 65,000 cap.

Both H-1B caps described above have been reached quickly in recent years, usually a considerable amount of time before the fiscal year even begins and frequently within mere days after the beginning of the filing season. For example, for fiscal year 2008, the cap was met within two days of the start of filing, and approximately 6 months before the beginning of the fiscal year. Thus, timing is essential.

Timing the filing of applications is frustrating because in order to file one, a Labor Condition Application (LCA) must be submitted to the Department of Labor (DOL). An LCA certified by DOL or proof of filing the LCA must be submitted with the H-1B application. Per the LCA, the employer makes certain attestations regarding the position, its pay, and the working conditions of others similarly employed.

The problem is that both the LCA and the H-1B application must be submitted no earlier than six months before the intended date of employment. But since the cap has been reached so rapidly in recent years, employers, or their attorneys, have found the need to coordinate both the LCA and the H-1B filing substantially earlier to ensure that the H-1B application will be able to be filed before the cap has been met.

Failure to meet the deadline means that the application will be rejected and the employer will have to wait until the following year. For applications received by United States Citizenship and Immigration Services (USCIS) on the day on which the cap is met, a lottery system functions to randomly select from the pool of applications received that day a number equal to what is needed to meet the cap. All other applications received that day and after that day are rejected.

Employers should be aware that an interim rule was published by USCIS on March 24, 2008, prohibiting the filing of multiple petitions for the same beneficiary in an attempt to increase the chances of receiving an H-1B visa. In the case that more than one petition is discovered, all the petitions for the particular beneficiary will be denied and filing fees will not be refunded.

I received a phone call recently from one of my clients in Columbus Ohio who was exited about Obama's choice for DHS Secretary. Its true President-Elect Barack Obama's choice for Secretary of the Department of Homeland Security, Arizona Governor Janet Napolitano, is a strong advocate of increasing the number of H-1B visas available. Although she cannot raise the H-1B cap herself, Ms. Napolitano's appointment to the post would give her some ability to streamline the H-1B process through changes in regulations and would give her position on H-1Bs significantly more weight. Obama's decision to nominate Ms. Napolitano demonstrates his understanding that current H-1B policies--and immigration policies in general--are inadequate and reform is needed.

Ms. Napolitano sent a letter in September of 2007, along with 11 other governors, to congressional leaders urging an increase in the H-1B cap. The letter stated that the nation is facing a "critical shortage of highly skilled professionals in math and science to fill current needs." It then warned that "until we are able to address this workforce shortage, we must recognize that foreign talent has a role to play in our ability to keep companies located in our state and country; and therefore need to ensure the increased availability of temporary H1-B visas, and permanent resident visas (green cards)." Opponents of increases in H-1B visas claim that such a change is unnecessary and even hurtful to U.S. workers. They say IT companies only use the H-1B visa as a way to hire cheaper and younger labor. I disagree.

Currently, the base cap set by congress on H-1B visas is 65,000. There are exemptions from the cap for certain people, such as those who are renewing their visas, those who work at universities and some research institutions, and up to 20,000 of those holding a master's or higher degree from U.S. universities. Legislation introduced in the U.S. Senate in April of 2008 would have increased the cap from 65,000 to 115,000 for fiscal years 2009 through 2011, and increased the exemption for possessors of U.S. master's degrees and higher to from 20,000 to 30,000. It remains to be seen how the new Administration and Congress will work together to effect long-awaited change in immigration policies.