Immigration Visa Lawyer Blog

The Board of Alien Labor Certification Appeals ("BALCA") in Little Thai Kitchen, II affirmed the Certifying Officer's denial of a PERM application filed for a "Chef" position because the advertisement failed to specify the identity of employer.

In Little Thai Kitchen, II When advertising, the employer, had directed potential US Worker applicants to transmit resumes via facsimile to the attention of the owner "Natarajan." The US Department of Labor's Certifying Officer ("USDOL CO") issued a letter auditing the PERM application. The employer submitted a proof of the advertisement showing the name of the employer missing. The Certifying Officer thereafter denied the application citing the reason that the employer's name was missing from the advertisement. The employer appealed the denial to BALCA.

The employer stated that notwithstanding the assertion by the USDOL CO, the employer's name was listed and that the facsimile number belonged to the employer. Furthermore, the employer argued that it was "harmless error." BALCA rejected the employer's argument stating that a review of the regulatory history of the PERM rules indicate that the employer's name in the advertisement must be shown for the following reasons: (1) to enable potential applicants to better determine whether they wish to apply for the job; (2) to address the possibility that some applicants
would not apply to a blind advertisement; and (3) to assist the CO in matching the
advertisement to the position in question in the event of an audit.

BALCA further reasoned that even though the advertisement had directed applicants to send resumes via facsimile to Mr. Natarajan, it had not stated that he was the President and CEO. There was no way for the USDOL CO to determine whether applicants were deterred from submitting a resume because the advertisement appeared to be a blind. BALCA also stated that it would be burdensome for the USDOL CO to investigate the impact of the absence of the employer's name on the effectiveness of the advertisement for PERM application purposes. For all of the above, BALCA affirmed the denial.

This case emphasizes the experience required to effectively file an approvable PERM application. Approval of a PERM application may very well hinge on a seemingly very minor requirement. In this specific case not only did the employer expend time and effort and resources in filing the initial PERM application, not to mention attorney fees and costs, but also expended a 36 month waiting time between initial processing times, audit review time (which was estimated at 20 months), and eventual appeal only to find out that the entire application was denied because of the employer's failure to adhere to a very simple requirement: including the employer's name in the advertisement.

Continue reading "Columbus, Ohio Immigration Lawyer Provides Update: BALCA Affirms Denial of PERM Application where Ad Did Not Show Employer's Name" »

A popular alternative to the H-1B and L-1 visas for Canadian or Mexican nationals is the TN Visa. This visa allows temporary immigration to the United States for persons from Canada or Mexico who hold a baccalaureate degree or appropriate level of credential status, qualifying them as a professional. This visa has several advantages over other available options for citizens of the NAFTA treaty countries over and above the benefits of H-1B or L-1 visas. Due to the specialized documentation needed in order to properly apply for a TN visa, the representation of an experienced immigration attorney is recommended when applying for TN visas.

Qualifications

The TN visa is based upon the NAFTA treaty signed by Canada, Mexico and the United State. The purpose of this visa is to allow for the mobility of professionals between the three countries in recognition that the common borders of the NAFTA signatories lend themselves to multinational business across their shared boundaries. Therefore, professionals holding a baccalaureate degree or equivalent credentials may be eligible to apply, including those citizens of Canada who graduated from a three year degree program.

There are various statutory requirements that need to be proven in the TN visa petition. Generally, it needs to be shown that the applicant is indeed a citizen of Canada or Mexico and that he person is indeed a professional. Proof of a professional and lawful work engagement requires the careful drafting of a letter, explaining the purpose and length of stay.

Advantages of the TN Visa

There are several advantages of the TN visa over other the L-1 or H-1b visa:

1. There is no statutory limit on the length of stay in the United States;
2. A four year baccalaureate degree is not a hard line requirement, equivalency to a baccalaureate degree may be shown;
3. A three year baccalaureate degree may be used to meet the educational requirement in certain situations;
4. Part time employment is permitted;
5. Change of job location with the same employer does not necessarily require the filing of a new petition;
6. TN Visas may be processed at the port of entry instead of the central USCIS processing facilities;
7. The petition does not require the filing of an LCA.

There are two main drawbacks for the TN visa that need to be taken into consideration before applying:

1. There can be no dual intent for TN visa holders. This means that a TN visa holder will run into trouble in obtaining a Green Card while on TN visa status. There are also side effects of the "no immigrant intent" rule for TN visa holders, such as the inability to obtain in-state tuition in the US;
2. No Self Employment: TN visa holders cannot work for a company in which they hold an interest.

Continue reading "Columbus Immigration Visa Attorney Discusses the TN Visa for Canadian and Mexican Nationals Engaged in work Activities at a Professional Level" »

This articles provides guidance in understanding common issues involved in the H-1B visa extension. The main topics of discussion will be: the "240 day rule" for timely filed H-1B extensions, travel while H-1B extension is pending, and H-1B extensions beyond the six year limit.

H-1B Extensions:
The H-1B visa allows a foreign national to remain in the United States temporarily for a total period of up to six years in H status (with possible extensions). The H-1B visa is approved in three year increments. The H-1B visa extension can be filed by anyone currently in H-1B status in the United States and currently employed by a U.S. employer. An H-1B extension can be filed up to six months (180 days) prior to the expiration of their current status. It is currently taking USCIS approximately two (2) full months to adjudicate H-1B visa extensions. Thus, it is advisable to file the extension as early as possible within the 180 day period. Often times however, H-1B extensions are filed very close to the expiration date (i.e., less than two months) which creates a sort of "gap" in valid status. While this appears to be a problem, Federal Regulations offer a solution, which is discussed below in the "240 Day Rule" section. Finally, H-4 dependents (spouses and children of the H-1B visa holder) must have their status extended as well. Their petitions will be filed concurrently with the principal beneficiary.

The "240 Day Rule":
Occasionally, an H-1B extension is not filed until very close to the H-1B worker's expiration of status. If the expiry date is close, the H-1B worker may feel anxious that his/her visa may not be renewed before the expiration of their current approval notice. The worker may want to travel and need the extension approved before doing so. The Service's current processing times for H-1B extensions create a nebulous period between the expiration of current status and approval of the extension. Luckily, Federal Regulations have provide an out in such situations. The so-called "240 day rule" was implemented to allow an employee to continue to work for an additional 240 days after the expiration of the visa for the same employer so long as there is a timely filed (i.e. before the expiration of the current status) and pending H-1B visa extension application with USCIS. The benefit is clear; the H-1B worker will continue to work for the employer unabated. This is true even if USCIS issues a Request for Evidence seeking additional documentation of H-1B eligibility. However, if the petition is denied, the worker must cease employment as of the date of denial. Any period of work after such a denial would be considered unauthorized employment.

Assuming there are no problems with the extension, a new I-9 form must also be completed in the department in order for the H-1 holder to continue. With your extension receipt, you can write "240 day rule applies" on the Form I-9 and then reverify the I-9 at the end of the 240 days when you have received the H-1B extension approval notice. This is helpful for your Human Resources department as they often feel uncomfortable in maintaining employment without the approval notice in hand.

Travel with Extension Pending:
H-1B visa extensions should be made 3 to 6 months in advance of the intended start date to ensure timely USCIS processing of the request. Workers in valid H-1B status may travel abroad after the extension has been filed with USCIS but must return before the current H-1B expires or wait abroad for the extension to be approved. The approval notice can be sent to the applicant to obtain a new visa with which to return to the U.S. As a note of caution, certain consulates may require additional documentation in addition to the approval notice such as the completed petition and/or DOS forms (such as the new DS-160) to issue a new visa stamp. The U.S. Consulate in India is especially detailed and requires more information. Always check the consulate's website prior to scheduling an interview in these situations.

Extending the H-1B Visa Beyond the Six-Year Period
An H-1B worker may be nearing the end of his or her six year validity period on H-1B. All else being equal, an H-1B worker cannot extend their status past the six year period and is required to leave the U.S. for a year before returning on H-1B status. However, in October of 2000, AC21 was enacted enabling H-1B visa holders with approved I-140 petitions who are unable to adjust status to lawful permanent resident status (I-485) due to the per-country limitations, to be able to extend their H-1B visas until their application for adjustment of status has been adjudicated. If you have an employment based green card application filed on your behalf in EB-1, EB-2 or EB-3 categories and you are not able to file for adjustment of status because you are from a country where your priority date is not current, then you can extend your H-1B visa for up to three additional years. The approved I-140 is your ticket to the additional three years. If your I-140 is still pending, then you can only obtain one additional year provided that 365 or more days have passed since filing your labor certification or 365 days or more have passed since the filing of the I-140. Applicants from China or India often experience this scenario as the per-country limitations from those countries are quite small in comparison to other countries.

Continue reading "Columbus Immigration Lawyer: H-1B Visa Extensions and the "240-Day Rule"" »

The treaty investor visa, or "E-2" visa, is a nonimmigrant visa category in which adjudication can seem subjective depending on the governmental office where the application is made. While there are hard and fast rules, the E-2 treaty investor visa engenders inconsistant governmental action by consulate offices abroad and by the USCIS. This article addresses the common problem areas and offers "real world" practical advice on securing an approval of an E-2 treaty investor visa.

There MUST Be a Treaty
The E-2 treaty investor visa is based on a qualifying trade treaty between the United States and various other countries of the world. The treaty must exist between the alien's country of nationality and the United States. If the requisite treaty does not exist, the alien will not be eligible for the treaty investor visa, irrespective of where the individual resides. A comprehensive list of treaty countries may be found on the U.S. Department of State website. For example, while the United States has made diplomatic and political strides in securing a friendly relationship with Russia, there is currently no treaty between the U.S. and Russia with respect to the E-2 treaty investor visa. Therefore, a foreign national with Russian citizenship will not be eligible for the E-2 treaty investor visa regardless of where the alien currently resides. The first step in identifying your eligibility under the E-2 visa category is to ensure the treaty exists between the foreign country and the U.S.

The next step is to know the law for qualifications under the E-2 treaty investor visa. Once you have established the requisite treaty and that you meet the legal criteria, a thorough analysis of the consulate precedent and procedures must be conducted as every consulate adjudicates E-2 treaty investors differently.

Each Consulate Has Its Own Procedure: You MUST Comply!
Knowing the foreign national's Treaty Visa Office's Consulate procedure and precedent is necessary to obtaining the visa. For many Treaty Visa Offices, there are extremely detailed and specific procedures for both registering an enterprise and filing for visa issuance once an enterprise has been registered. Each embassy or consulate website contains specific instructions that must be followed for each E-2 treaty investor visa applicant.

For example, the U.S. Embassy in Toronto, Canada has one of the most detailed procedures for obtaining the E-2 visa. The embassy requires that E-2 visa petitions be bound and organized into sections. The sections must contain dividers with numbered tabs that stick out from the edges. If the dividers are submitted without tabs, the submission will be rejected. These procedures can be found on the embassy website. Failing to abide by the specific requirements can result in dire consequences. Not following the procedural requirements can result in rejection or issuance of an evidentiary request, which can move the application to the back of the line and cause significant delay. Careful attention to consulate procedures ensures that consulate officers will adjudicate the case based on the merits.

In regards to precedent, the most common distinction made at the consulates is what is considered a "substantial investment." The law states that there is no minimum investment amount required. The investment must simply "be sufficient to ensure the success of the desired investment, and more than what is necessary to simply provide a living for the applicant." However standardized this requirement appears, standards differ from consulate to consulate on how it views what a "substantial investment" actually may be. An alien should rely on the experience of a lawyer to know these differing standards. For example, experience shows that a Canadian applicant was successful in obtaining an E-2 visa for a $36,000 investment for a 65% stake in a Wendy's franchise, while an Argentine national's 100% purchase of a 32 room hotel in Miami, Florida for around $700,000 was deemed as not meeting the substantial investment threshold. These are only examples and serve as a precaution for E-2 treaty investor visa applicants to understand that while the law is uniform, each consulate's adjudication under the law is not.

Trace the Investment: Show Me the Money!
One of the most important aspects of the E-2 visa involves analyzing where the applicant's investment came from, how it is invested, and whether the investment is irrevocable or at risk. Many E-2 visa applications have failed due to not properly proving these investment elements to the consulate officer.

Where did the investment come from? The dollars invested must be controlled by the applicant, and they must be real dollars available chosen for investment. The enterprise cannot be a gift to the applicant, while the money invested can be. To prove control, consulates often want to see a track record of the funds being used by the applicant (i.e., bank statement dating back several months) or documentation about the transaction that brought about the funds, such as the sale of property or savings accounts. Irrevocable inheritances of money from loved ones often serve as investment capital. As long as the inheritance is properly traced, the gift will be considered "controlled" by the applicant.

How is the money invested? Consulate officers want to see money spent on tangible items that will be used in the business to grow the business. These dollars can be spent on equipment, inventory, property (sale or lease) or even salaries or contracts for services. Placing the funds in an account for future use will be insufficient. A major aspect of the E-2 treaty investor visa is the notion that investment capital must be irrevocably committed to ensure the success of the enterprise.

The investment must be subject to risk of loss. Part of investing is the reality that the business may not turn a profit and may eventually fail. The money invested must be subject to this risk or else there is not a true investment for E-2 purposes. The money must be placed at risk and vested irrevocably in the business. Using personal funds or funds secured by the investor's personal assets will satisfy the requirement.

Continue reading "Columbus Immigration Lawyer: Obtaining the Treaty Investor Visa (E-2) with the Treaty Visa Office or USCIS Poses Traps for the Unweary" »

COLUMBUS, Ohio - May 19, 2010, Gus M. Shihab with The Law Firm of Shihab & Associates, Co., LPA filed on behalf of Integrity Gymnastics & Cheerleading a declaratory judgment action against the United States Citizenship & Immigration Services due to its denial of Natalia Laschenova's immigrant visa petition.

Ms. Laschenova won an Olympic Gold Medal in gymnastics in the 1988 Olympics. Integrity Gymnastics petitioned the USCIS to qualify Ms. Laschenova as an "alien of extraordinary abilities" as a Olympic Gold Medalist and gymnastics coach in the U.S. Ms. Laschenova's case was denied and she is currently in the U.S. without status and is subject to deportation. All administrative remedies within the Department of Homeland Security have been exhausted hence Integrity Gymnastics is seeking a declaration by the Federal District Court for the Southern District of Ohio that she qualifies as an alien of extraordinary abilities.

The declaratory judgment suit is a civil action seeking a judicial declaration that USCIS has committed an abuse of discretion, acted clearly erroneously and in clear error of judgment and that the decision denying the beneficiary was arbitrary, capricious and unreasonable. Integrity Gymnastics filed the declaratory judgment action against USCIS, the Attorney General of the United States, Mr. Erik H. Holder, Jr. and the U.S. Attorney for the Southern District, Mr. Carter M. Stewart.

When will the 2011 H-1B Visa Cap Reach this year? This is a question I am asked about constantly from my clients. Many of my clients are in what I call a "Transitional Mode." As the economy slowly picks up, many of my companies are eager to hire talents to work on projects but are squeamish to do so because the slope of market's recovery is not as steep as they had hoped.

The financial news media has announced that the recession is technically over, however the effect of the recovery has not been felt yet. Reflecting on numbers released by the USCIS, it appears thus far at least, that the H-1B visa cap consumption is very similar to 2009. So, the question remains, when will the 2011 H-1B visa cap be reached?

As of the date of this entry, there has been 4 releases by the USCIS relative to the numbers of the H-1B visa cap reached thus far. I took the liberty to plot these numbers on a graph and I was very surprise to find out that the H-1B visa cap consumption experience has been very linear so far. In other words, the slope of the graph representing the usage of the H-1B visa cap cases is a straight line. Please see graph below. In other words, the market place has been very consistent in the demand for foreign talent . It is my opinion that the demand for the employment of foreign talent is very similar to the demand for domestic talent. Said differently, employers do not favor foreign over US specialty workers as has been demonstrated by the H-1B visa cap experience 2009 and 2010. Please see my previous blog article on this subject. Hence, the slope of the graph representing the usage of the H-1B visa is also a true representative of the employment of US workers in specialty occupations.

Since the H-1B visa usage this year is remarkably linear, It is simple to use this data to project forward the current usage into the future. Obviously this assumes that the demand for highly skilled labor will continue on the same trend as currently experienced. Judging from analysis of financial trends employment of highly skilled labors will lag behind consumer confidence and spending in the market place. Using the slope of the H-1B visa usage so far and projecting forward shows that the H-1B visa cap should be consumed by January 2011.

The H-1b visa program was designed with the intent of attracting some of the world's brightest minds to the United States to work for a temporary period. Many of the world's smartest and most skilled workers are able to utilize this employment based visa and the United States is strengthened by attracting these educated and highly skilled workers. The H-1b visa often times leads to procurement of a Green Card through the PERM processes. If it is true that part of the policy for establishing the H-1B program is to attract the world's smartest and most skilled workers to our country, why then would the Government allow for loopholes in the law that could create a financial penalty for workers who possess a master's degree as opposed to a bachelor's degree?

H-1B Dependency

In an effort to prevent companies from misusing the H-1B program, the Department of Labor and the USCIS has set up a system for discouraging employers from employing an extremely high percentage of H-1b visa holders in relation to the American workers that a company employs. A company that employs a high percentage of H-1b employees may fall into the category of "H-1b dependant."

H-1b dependant employers must make additional attestations on documents filed with the Department of Labor. Specifically, an H-1B dependant employer must swear that the H-1b worker did not displace any American worker for 90 days before and after the H-1b visa is filed. Additionally, an H-1b dependant employer must attest that it has made good faith efforts to recruit American workers to fill positions in its company. Penalties for violating the attestation requirements can be quite severe.

If a company has a high percentage of H-1b workers, and is would be considered H-1b dependant, the company can avoid the attestation requirements listed above by doing one of two things: 1) paying the H-1b employee $60,000 per year or 2) hiring an alien with at least a master's degree.

However, the problem that this rule produces is that an H-1b employer could potentially pay the holder of a master's degree less money than a holder of a bachelor's degree: thereby creating a master's degree penalty. Penalizing persons with higher levels of education makes no logical sense insofar as immigration policy is concerned. However, it is potentially true that companies could attract holders of master's degree for the purpose of paying them less than the employer would have to pay the holder of a bachelor's degree.

Continue reading "Columbus Immigration Lawyer Discusses H-1b Visas, H-1b Dependency Issues & Possible Penalty for Aliens Possessing a Master's Degree." »

In applying for a treaty investor ("E-2") visa, the E-2 visa applicant must invest in a business that is more than "marginal." For E-2 purposes, what is this concept of marginality?

What is meant by the term "marginal" enterprise in E-2 treaty investor visa petitions?
If you are reading this you already know what an E-2 treaty investor visa is and you are seeking a detailed analysis of the finer points of the seemingly ambiguous term - marginality. This article addresses the legal definition of "marginality" within the E-2 framework and offers some practical advice on dealing with the concept on an E-2 visa petition. If you do not know what an E-2 treaty investor visa is, please click here before reading on.

The concept of marginality is often an overlooked aspect of the E-2 visa. However, it is a very important conept that must be addressed, especially for investors seeking E-2 classification based on investments in poor performing or underperforming existing businesses. Investing in an underperforming business can be advantageous for a foreign investor who can benefit by buying low and turning the business into a profitable enterprise. The concept of buying low and selling high is a fundamental in capitalist societies - but it poses problems for foreign investors seeking the E-2 visa. The problem is that the alien must submit the company's tax returns for the past three years. A poor performing business often times operates at a net loss. The immigration officer or consulate officer will examine the tax returns and if operating at a loss will view the investment as not being able to generate sufficient income, rendering it a marginal business. Many E-2 visas are denied on this basis. However, an investor can avoid this pitfall by carefully crafting their business plan.

Federal regulations defined a "marginal" enterprise as one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Obviously, a business that is currently operating at a net loss may not provide enough income even to support the investor's family. In this scenario remember the American dream takes precendent - show that you can "sell high!"

The Key is to Craft a Detailed E-2 Business Plan
There are various ways to show that the business is more than marginal, in the sense of only providing a livelihood for the applicant. If the business does not yet generate sufficient income necessary to support the applicant and family, then one can look to the economic impact of the business. The enterprise must have the present or future capacity to generate more than a minimal living for the investor and family in order to make a significant economic contribution. When future capacity is at issue (which it will be in enterprises operating at a net loss) you need to demonstrate that the future capacity to generate income will occur within a five-year period. The most widely recommended way to show future capacity is to submit a reliable business plan to verify the capacity to realize a profit within a maximum five years from the date the alien commences normal business operations.

The business plan should have a pro forma - that is, a hypothecial, realistic, financial statement based on assumptions. The assumptions deal with expected revenues and expenses. The overall assumption is that the business will grow and generate significant future income. The business plan should contain a detailed pro forma financial statement, a balance sheet and a statement of future cash flows. Without these financial projections, the immigration officer or consulate officer has no way of determining whether the enterprise will become a viable business. The financial projections are the only way the adjudicating officer can make a positive determination regarding the future financial health of the company. In other words, the officer will not be able to call the company marginal if a well-crafted business plan is included with the application.

Continue reading "Columbus Immigration Attorney: The Concept of Marginality in E-2 Visas and the Artfully Carfted Business Plan" »

The Board of Alien Labor Certification Recently reversed the decision of the US Department of Labor Certifying Officer (CO) on the basis that employer complied with the regulations regarding notice of its employee referral program.

The case is known as Clearstreat Bankings issued by BALCA on March 30, 2010. In this case, the employer had filed a PERM application for labor certification in which it used the employer referral program as one of its alternative recruitment steps.

PERM regulations require the employer to engage in four (4) main recruitment campaigns to show that the permanent employment of the alien in the particular position will not displacing equally qualified US workers. These recruitment campaigns include: 1) Two published ads in a newspaper of general circulation in the area of intended employment; 2) Posting a "job order" at the State Workforce Agency; 3) choosing three from 10 alternative recruitment steps identified in the regulations; and 4) post an internal notice that the employer is about to file an application for alien labor certification. All of these recruitment campaigns must primarily be completed by the employer at least 30 days prior to filing the PERM application.

The alternative recruitment steps mentioned above would require the employer to choose three of the following additional recruitment steps: on campus recruitment, career or job fairs, employer website, radio and television ads, local and ethnic papers, job search website, trade or professional journals, campus placement office, private employer firm, and employee referral program.

In the Clearstreat Banking case, the employer had utilized the employee referral program as one of the three additional recruitment steps. The USDOL Certifying Officer initially issued an Audit Request. The employer provided documentation of its recruitment activities in its audit response including documentation of the employee referral program utilized. The Certifying Officer denied the PERM application on the ground that it failed to comply with the regulations 20 CFR §656.17 in that the memorandum used by the employer in such employee referral program did not have "dated copies of employer notices or memoranda advertising the program and specifying the incentives offered." Id. The problem the Certifying Officer found was that the memorandum which was passed around to the company employees stated that there are incentives in accordance with the company's established referral program but did not specify the incentives. It was on that basis did the Certifying Officer deny the PERM application.

Having first filed an unsuccessful motion for reconsideration with the USDOL Certifying Officer, the employer filed an appeal with BALCA whith which he attached a copy of the company's referral program that had been in place since 1998. BALCA agreed that the employer's employer referral program notice complied with the regulations in that it stated that "an incentive" existed and that it referred the employees to the internal employer referral program which provided specific details relative to such incentives.

Arizona has recently passed one of the harshest anti-immigration bills in America's modern history. While the bill is obviously aimed at those persons who have entered the United States from Mexico without inspection, the effects of this bill will be felt in all immigrant communities. The law gives state and local officers the authority to arrest and detain any person in violation of federal immigration law as well as proscribing punishments for those who aid immigration law violators. Those persons who are present in the United States on valid employment based visas, such as H-1B, L-1 and H-2A, as well as those persons who are eligible or have applied for a Green Card or Legal Permanent Residency through the PERM process or family based petition, now must be extra careful to remain in valid immigration status at all times and above all else always carry their "papers" on them. Just as the tide raises all boats, Arizona's law will affect all immigrants and their employers within that state

On the heels of Arizona's new law, certain Ohio senators have begun the process of drafting copycat legislation. The consequences of such legislation for Ohio business if such legislation were to be passed could be very grave. A bill that damages the confidence of Ohio's vital, skilled and hard working immigrant population in the state's openness and welcome for immigrants in general would do unnecessary harm to Ohio's already recession weakened economy. Before Ohioans jump on the anti-immigration bandwagon, perhaps they should instigate the wording of Arizona's legislation and its potential to harm Ohio's economy.

Ohio should not burden businesses with the requirement to investigate all contractors and subcontractors for services

Arizona's law makes it a crime to knowingly or intentionally employ an unauthorized immigrant. Furthermore, Arizona's law makes it illegal to contract with a person who intentionally or knowingly employs an unauthorized immigrant to perform work for the contacting person. If read literally, Arizona's law would make it a crime to contract with any person or business that has hired an unauthorized worker. As a precaution, businesses would be required to investigate the immigration status of all of their business contact's employees. For the large and medium sized corporations that call Ohio home, such a law would create an unreasonable financial burden and untenable risk of criminal prosecution. There are plenty of other states that would be happy to siphon off the business of Ohio's corporations with the lure of a decreased risk in liability.

Ohio's immigrants make Ohio stronger

Ohio is home to one of the most diverse and most representative cross sections of business, industry, agriculture, research and government as can be found in the United States as a whole. Ohio's many colleges hire the best and brightest people in the world to teach and carry out research. Ohio's businesses rely on skilled workers in engineering and technology to fill positions where not enough American citizens can be found to fill demand. Finally, Ohio's agriculture relies on the labor of H-2A non-immigrants to carry out some of the toughest jobs on the farms and in the fields. Ohio needs to attract immigrants in order to fill vital jobs that make Ohio's economy strong. Why would we want to injure or insult our immigrant population by requiring them to carry "papers" like in some dictatorial third world country? Again, there are plenty of other states and countries that would love to attract skilled and hard working immigrants to carry out the jobs that are vital to the economy.

Continue reading "Columbus Immigration and Visa Attorney Examines the Effects of Potential Immigration Bill on Ohio Business" »

This article offers guidance on determining the period of authorized stay for aliens previously in H-4 or L-2 status who have changed their status to H-1B or L-1.

Period of Authorized Stay (H-1B or L-1)
A foreign national may be admitted to the United States in H-1B status for a maximum of six years, with exceptions, and in L-1 status for a maximum of five (specialized knowledge workers) or seven years (managers and executives). At the end of the period of authorized stay, the foreign national must either depart from the U.S. or change to another status (but not from H to L or vice versa).

However, the six year maximum period of stay can be reset upon the H-1B or L-1 visa holder's absence from the U.S. for at least one year. Hence, once the H-1B or L-1 visa holder reaches their authorized period of stay, then departs the U.S. for one full year, the foreign national is entitled to receive another six year term on H-1B visa or five or seven year term on L-1.

H-4 or L-2 Time Does NOT Count Against H-1B or L-1 Time
According to current USCIS guidance, any time spent in H-4 status will not count againt the six-year maximum period of admission applicable to H-1B foreign nationals. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay. The same goes for time spent in L-2 dependent status - it will not count against the time available to the alien in L-1A or L-1B status.

The practical implications of this simple rule are resounding. The result is that a husband and a wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain nonimmigrant status for 12 years! Here's how - the husband and wife may maintain their respective H-1B and H-4 status for six years and then change status to H-4 and H-1B respectively. This would essentially reset the clock for another six years since H-4 status does not count against time on H-1B. Note that upon the switch, the new principal alien would be subject to the H-1B cap if not independently exempt.

Continue reading "Columbus Immigration Attorney: Time Spent on H-4 or L-2 Does Not Count Against H-1B or L-1 Period of Stay" »

Numbers released by the US government suggest that US Employers are shying away from employing highly skilled foreign workers in the H-1B Visa Category. This statistical fact is indicative that US employers do not use the H-1B Visa Program to emply "cheaper labor." It follows that the H-1B Visa Cap limitation is an arbitrary intervention in the market force. Congress must leave market forces to determine how many H-1B visas are issued each year.

Yesterday, the USCIS posted on its website an update for the H-1B visa cap count for federal fiscal year 2011. The H-1B visa cap count update is as of April 27, 2010. According to the USCIS website, only 6,900 petitions have been received out of the H-1B Master's Degree Exemption category leaving 13,100 potentially available visas in exemption category. In addition, 16,500 petitions have been received by the USCIS against the "regular" cap leaving 48,500 available Visas in that particular category. These numbers are certainly indicative of a poor employment economy and underscores the proven fact that H-1B visa workers do not take away the job from US Workers.

Do We Need an H-1B Visa Cap?

With the dwindling numbers of H-1B visa petitions submitted towards the 2011 federal fiscal year, it is apparent that US employers are not too keen about hiring foreign workers in H-1B visa category in 2010. One cannot but be confirmed that the use of the H-1B visa program is directly tied to the economic employment trend in the US. When employers are looking for talent and cannot find it in the employment of US workers, they will look to augment their workforce with highly skilled US workers. If, as immigration restrictionists claim, US employers employ low paid foreign labors to the disadvantage of US workers, surely 2010 would be a year that employers would maximize the use of H-1B visa workers to save money. But the fact indicate that employers in 2010 are shying away from the H-1B visa program because they are able to find qualified US workers to fill positions.

The Danger of Arbitrary Market Limitations

It has been proven time and time again that arbitrary limitations placed on the market place have nothing but catastrophic consequences. Market intervention has consistently been held against the essence of free enterprise on which our nation was built. The same holds for arbitrary constraints on the resources that help our country grow and become more competitive globally. Harvard University has recently studied the economic contributions of H-1B visa workers on the US innovation. According to this study, there is a linear correlation between immigration policy and innovation in the US. More specifically, more innovation is fostered by an increase in H-1B visa workers present in the US. Based on this study, an arbitrary control over the admission of H-1B visa holders will have an adverse impact on US progress. The best H-1B visa limitation policy is one that is left to the market to decide.

Call on Congress to Remove the H-1B Visa Cap

The FFY 2010 and 2011 experience strongly suggest that US employers do not resort to the H-1B visa program to exclude US workers from jobs. Since in high unemployment years, US employers stayed away from using the H-1B visa program, it follows that the opposite should also be true: in low unemployment years, US employers should be allowed to use the H-1B visa program to the maximum extent without being constrained by the annual cap. The annual cap was implemented to assure that US workers are not deprived from employment opportunities. As clearly shown by the current experience, market forces should be left alone to control the number of H-1B visas used in any year. Hence the cap is nothing but an arbitrary limitation that has no place in our free entrepreneurial system. The forces of supply and demand of free markets must be the only limitations placed on the number of H-1B visas issued annually by the USCIS.

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