Immigration Visa Lawyer Blog

In these times of economic uncertainty, it seems that many in the American public target employment based immigration as one of the many causes of high unemployment rates in the United States. However, overwhelming evidence shows that the immigration of high skilled workers through the H-1B and PERM programs actually improves the economy. Much of the unemployment problems in the United States and specifically Columbus, Ohio stem from a mismatch of skilled persons available for high tech jobs.

In a recent interview, Alan Greenspan placed his support behind supporting the immigration of persons who hold higher degrees from American colleges and Universities. In this interview, Mr. Greenspan cautioned America against artificially creating more low skill jobs to try and reduce unemployment. In Mr. Greenspan's opinion, the true path to raising the standard of living in America is to open the workforce to more skilled workers.

A recent article in the Columbus Dispatch illustrates the point that many high skilled jobs go unfilled because of a lack of persons possessing skills to fill those jobs. As more non-tech businesses integrate technology into their business models, the demand for highly skilled workers is only going to increase. This demand is also expected to be compounded by the move of American employers to the international based financial reporting standards. Clearly there is a demand for skilled workers in Columbus, Ohio as well as the United States as a whole.

One way to meet this demand is to allow more high skilled immigrants to obtain temporary and permanent employment through the H-1B and PERM programs. Allowing more of these jobs to be filled will produce more tax revenue as well as add more consumers to the United States market. Some of the greatest economic minds as well as the raw evidence support the notion that immigration of high skilled workers helps rather than hurts the American economy.

Just about when the pre PERM filing prevailing wage determination processing times improved, we began noticing significant delays recently. As a way of background, employers wishing to sponsor a foreign national for an employment based permanent residence application in either the EB-2 or EB-3 categories regulations require such employers to make a formal prevailing wage determination request. Based on the news coming out of the US Department of Labor, such employers must now wait.

Background

Prior to January of 2010, all prevailing wage requests were determined by the State Workforce Agency ("SWA"). In some cases, SAWs were completely unreasonable in their computation methodologies and were quite arbitrary. Ohio for instance was one of the worst states in their computation methodologies. The Ohio Department of Jobs & Family Services located in Columbus, Ohio was the agency historically commissioned with the task of determining prevailing wages for all pre PERM filing application processes.

Ohio's prevailing wage determination process was later challenged in matter of Reed Elsevier, Inc., 2008-PER-00201 wherein Board of Alien Labor Certification Appeals agreed that the Ohio Department of Jobs & Family Services used an erroneous method of combining experience and educational requirements when computing prevailing wages; a methodology which was inconsistent with the regulatory provisions. For a decade prior to the issuance of the Reed case, our Columbus, Ohio Immigration Law Firm has challenged these determinations repeatedly and brought to the attention of various organizations the injustice brought about Ohio's arbitrary system.

Kudos to the lawyers who challenged the Ohio prevailing wage process; this challenge obviously did not help the thousands of employers who previously had been issued outlandish prevailing wage determinations by the Ohio SWAs use of erroneous methodologies. I might add that some employers faced with such unreasonable prevailing wage determinations may have been dissuaded from pursuing permanent residence for some of their employees.

Such inconsistencies prompted the US Department of Labor to centralize the prevailing wage determination process and took it away from the various State SWAs. The new re-engineered system was to be an on-line application process and it became effective January 2010. Initially the prevailing wage processing times were incredibly slow totaling 90 days in some cases. Eventually, the processing times became better down to 25 days. It is not clear now how long the prevailing wage determination process will take.

Processing Delays

The American Immigration Lawyer Association posted on its website this morning that several AILA members noted significant delays in the processing of prevailing wage requests in connection with a PERM application process. The US Department of Labor states that these delays happened as a result of a temporary halt in their operations in an attempt to comply with order of the US District Court for the Eastern District of Pennsylvania in CATA v. Solis, wherein the Court ordered the US Department of Labor to establish new H-2B prevailing wage regulations.

As the US Department of Labor issues regulations in connection with the H-2B visa program, employers wishing to process PERM applications must wait. I will post updates once they become available on the prevailing wage processing times.

If anything can be learned from the market's absorption of new highly skilled foreign labor in Specialty Occupation (H-1B) visas last year, is that these foreign nationals do not compete with US workers over the same jobs. Since numerous prestegeous studies corrolated innovation in America with the population of H-1B visa workers, the H-1B visa worker market absorption data is an indicator of how well the overall country is doing economically.

Even though the federal government made 85,000 new such visas available for the picking on April 1, 2010 (as it does every year), employers were slow to apply. For the first time in over a decade, all new specialty occupation, H-1B visas were finally consumed by January 21, 2011.

In prior years, all available visas were swallowed up voraciously by employers in a matter of hours when H-1b visas became available on April 1. Desperate employers could not fill open positions in information technology and all other highly skilled sectors fast enough; hence they resorted to importing these workers from other countries. But last year was different. Unemployment figures soared to double digits, a matter which the US had not witnessed for decades. Hence, if the H-1B visa worker market absorption experience last year tells anything, it says that employers were able to fill some of the available positions with US workers and/or that there were no jobs to fill.

Earlier this calendar year, pundits predicted an economic resurgence and that we are now on the brink of recovery. Hence a comparison between the 2011 and 2012 federal fiscal years' market absorption rates of H-1B visa workers should be a good indicator of the overall employment market and particularly the health of the technical employer sector.

One interesting phenomenon this fiscal year, is that by April 15, 2011 the USCIS reported receiving only 12,200 H-1B visa petitions , as compared to last year which was 7,200 more (19,400) for the same date. In other words, early indicators of the H-1B visa market usage this year showed potentially weaker absorption rate of foreign H-1B visa workers. Even with a lower starting point this year, however, the rate of weekly H-1B visa petitions filed since April 2011 is greater than was last year for the same period, indicating a stronger H-1B worker market absorption. For instance, last federal fiscal year, there were 16,900 petitions filed between April 15 and July 16 while this year, there were almost twice that many - 32,080 petitions filed in the same period. It is unclear why the initial filing numbers in April of this year were so much lower but certainly it is a much more robust year than last year for H-1B visa workers.

Moving forward, my prediction is that we will continue to have H-1B visas available well into the end of the year. Unless market demands shift, which they may very well do so as a higher number of weekly petitions filed occurred after July 2010 and continued to climb during the last quarter of the year, it is expected that the cap will reach between November 2011 and January 2012.

It is worthwhile that our clients here in Columbus, Ohio know that USCIS has announced that as of July 15, 2011, approximately 20,500 H-1B cap-subject petitions were receipted. USCIS has receipted 12,800 H-1B petitions for aliens with advanced degrees. With so many H-1B visas currently available, there are great opportunities for businesses in central Ohio to take advantage of the H-1B visa category to help staff professional positions lacking sufficient US labor supply. Our lawyers are prepared to assist you in any H-1B related questions you have. Contact our firm today at 614-255-4872.

For those employers in Columbus, Ohio who take advantage of the H-1B visa program, you will be pleased to know that USCIS has revised the VIBE (Validation Instrument for Business Enterprises) RFE to remove language that suggested petitioners update or create a record with Dun & Bradstreet (D&B). The RFE now directs petitioners to the USCIS VIBE website which provides further instructions for petitioners to update their information.

This news is welcome relief to those USCIS "solicitation" boiler plate RFE's effectively admonishing employers to purchase D&B products or services. The hard of AILA has without a doubt helped to make this change possible.

If you are a company in Columbus, Ohio or any of the areas surrounding central Ohio, the Immigration Lawyers at The Law Firm of Shihab & Associates understand that the economy may have hampered your hiring and recruitment efforts. The H-1B visa may be in decline for certain large businesses, due to the often burdensome evidentiary requirements and increasing fees; however, some smaller businesses here in Ohio should take advantage of the glut of H-1Bs still available to fill positions that may be in short supply from the U.S. labor force.

How can I use the H-1B Program?
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. IT companies have been the largest applicants for the H-1B visa. There are two basic ways to hire an H-1B worker: you can hire a foreign national directly (usually right of college), or so long as certain evidentiary requirements are met, IT companies can "assign" H-1B workers to your company to implement a project, design inventory software, or create other cutting edge software that will set your company apart in the 21st century.

For more information about the H-1B program, see the our firm's webpage dedicated to various complex H-1B speicalty occupation issues.

These H-1B workers fill a void in the U.S. labor market for jobs in mathematics, software and engineering, and can offer an excellent temporary solution to your company's short term needs. USCIS recently announced that approximately 19,000 H-1B cap-subject petitions (out of 65,000), and 12,200 H-1B petitions for aliens with advanced degrees (out of 20,000), were receipted as of July 1, 2011. This means that there are currently 53,800 H-1B visas still available for the government's 2012 fiscal year (which begins on Oct. 1, 2011 and ends Sept. 30, 2012)!

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