Immigration Visa Lawyer Blog

The United States Department of Homeland Security announced it will make changes in the F-1 and H-1B visa categories, which will likely benefit professionals from countries such as India. Changes would include providing work authorization for spouses of H-1B visa holders, 17-month extension of optional practical training (OPT) for certain F-1 international students, allow for additional part-time study for spouses of F-1 students, and allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

Under current immigration law, H-4 visa spouses of H-1B work visas holders are not permitted to work themselves. One of the proposed DHS regulations would change this. The new regulation would allow some spouses of H-1B visa holders to work legally while the H-1B visa holder spouses wait for their adjustment of status applications to be adjudicated. H-4 dependent spouses would be granted employment authorization when the principal H-1B visa holders begin the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the United States.

Currently, F-1 students may only work in optional practical training (OPT) for 12 months. DHS plans to provide 17 month extensions of OPT for those students with degrees in Science, Technology, Engineering and Mathematics (STEM).

Changes would also allow for additional part-time study for spouses of F-1 students, and would increase the number of Designated School Officials (DSOs) at DHS certified schools to enroll international students. Under current immigration regulation, spouses may only take part-time vocational or recreational classes. The proposed changes would permit spouses of F-1 students to enroll in additional academic classes on a part-time basis while the F-1 student is enrolled in full-time studies.

The DHS's stated purpose here is to reform administrative practices and ease the visa process for highly-skilled immigrants who want to come to the United States for work. This effort could help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

The Department of State Visa Bulletin took a giant leap today, advancing nine (9) months for the EB-2 preference category for persons from India and China. As it stands now, people from India and China who have a priority date of January 2009 or sooner will be able to file for their adjustment of status. This is great news for those who have been waiting with approved I-140 documents in the EB-2 preference category.

For all of the advancement in the EB-2 category, there was relatively little advancement in the EB-2 categories. If this trend continues, thousands of more EB-2 beneficiaries could be eligible to adjust in the coming months. Persons holding approved I-140 documents in the EB-3 categories may want to consider taking action to obtain a labor certification under the EB-2 preference category to take advantage of these developments.

Continue reading "January 2011 Visa Bulletin Takes a Giant Leap Forward" »

With the rise of H-1B visa audits, H-1B visa site visits and Labor Condition Application (LCA) investigations, the US Department of Labor (USDOL) Wage & Hourly Division (WH) is becoming more veracious in prosecuting employers suspected of violating LCA regulations. In this escalated enforcement environment, an immigration lawyer defending employers in H-1B visa audits must be a seasoned litigant. Having fiercely defended H-1B visa audit cases during the past several years, I can speak with authority on the subject. It is my belief that once an investigation is launched against an employer, the USDOL will rarely agree to walk away empty handed unless forced to do so by vigorous and aggressive litigation. H-1B visa dependent employers are more vulnerable and stand to receive more scrutiny as well as WH determinations carrying higher fines and back wages.

Some of the employer practices which I commonly see causing the launching of H-1B visa audits include benching of employees, paying employees "per diem" compensation instead of payroll, failing to file a new LCA once the employee changes employment, and failing to pay the employee after the H-1B visa petition is approved.

Whether the employer likes it or not, she might find herself suddenly facing an LCA or H-1B visa investigation process that may later lead to litigation and a potential financial liability as well as debarment from using the H-1B visa program. These consequences might very well bring the entire business to a lethal downward spiral. What I find as a common denominator in all H-1B visa audit cases I defended is that the employer is culpable to variant degrees. That is to say, there are usually issues that cause concern for employers once they undergo such a process. Hence, once the employer becomes subject to an H-1B visa audit or LCA investigation process, the USDOL will most likely find infractions and deviations from the LCA regulatory requirements somewhere in the employer's system. Perhaps such frequent incidence of employer deviation is caused by complex, and often conflicting, record keeping and reporting directives of the H-1B visa process vis-à-vis the realities of today's marketplace requirements.

Weakening the USDOL's Case

Hence, with such a high number of employer infractions and increasing H-1B visa audits, my job as an immigration lawyer is to preserve the employer's business from possible extinction and damage management. In my H-1B visa audit defense work, I am seeing back wages and penalties in the hundreds of thousands of dollars. I have found the best strategy for H-1B visa audit defense is to slowly and surely chip away at the government's case by engaging in a deliberate process of evidence elimination using advanced litigation strategies and tactics. The competent immigration lawyer must examine all pieces of evidence available to the USDOL and seek all possible ways to discredit or eliminate each such evidence entirely, thereby forcing the USDOL to return to the negotiating table. When the USDOL is faced with a weaker case, they will have a great incentive to settle the H-1B visa audit case with a much smaller dollar amount. It is only with such aggressive and vigorous litigation advocacy will the employer survive an H-1B visa audit case without having to close its doors for business, as often happens.

The Initial Investigation Stage

The H-1B visa audit process normally undergoes three main stages, namely, the LCA investigation process, the pretrial WH litigation process, and the trial before an Administrative Law Judge. At various steps in these stages, the employer is confronted with a myriad of allegations and legal issues that require careful handling. Mismanaging the employer's case from the outset of the process could increase the employer's liability. For instance, giving the WH investigator more evidence than requested by the initial investigation letter could increase the employer's liability.

Obviously, the best possible scenario for the employer is to survive the first stage in the H-1B visa audit process, namely the WH investigation process, without having to resort to a hearing. The initial LCA investigation process could be as short as a few months or as long as a couple of years. Often times, the investigation process ends up with the issuance of a "determination letter" signed by the WH Administrator setting forth the back-wages and penalties levied against the employer. The employer must remember that the WH investigator has little authority to settle the case at that point and has an absolute 15 calendar days to request a de novo review of the WH Administrator's determination before an Administrative Law Judge.

Continue reading "H-1B Audit Defense Requires Immigration Lawyer to be Litigation Savvy " »

The process of priority date advancement in the visa bulletin, is a matter of mystery to the immigration community. Immigration lawyers wish they have a crystal ball with which they can advise clients when their I-485 applications can be filed. Immigrants are always apprehensive about their green card applications and they do not know when their priority dates might become current. For certain Indian and Chinese nationals, the wait can be daunting. The US Department of State has recently made predictions regarding priority date advancement for Indian and Chinese nationals. This article provides a summary of these predications.

It is important for Chinese and Indian EB-2 petitioners to file their I-485 applications in the first month of visa availability. Moreover, it would be wise for Indian nationals in the EB-3 category to take the steps necessary to file an EB-2 petition due to the long wait in priority dates. Priority dates will be advanced significantly for category EB-2 nationals of India and China but EB-3 category dates will remain stationary, according to the Chief of the Visa Control and Reporting Division of the Department of State, Charles Oppenheim.

For nationals of India and China in the EB-2 category, Mr. Oppenheim predicts that over the next few visa bulletins, priority dates could advance eight months by February 2012, then remain stationary through June 2012 when there is a possibility of retrogression. Mr. Oppenheim explained that retrogression is necessary to make sure that all the visa numbers are used before 9/30/12, otherwise they would be lost forever.

Priority dates are predicted to stay the same during 2011 for nationals of India in the EB-3 category, advancing only one month from December 2011 through June 2012. This is because India is limited to only 3,000 EB-3 based green cards per year and the queue is estimated at 210,000. If this were to remain, a 70 year wait is conceivable. There is legislation pending that could eliminate this limitation, which would cause priority dates to advance.

For nationals of China in the EB-3 category, priority dates are predicted to advance about three weeks per month during 2012, which would mean an advancement of four months between December 2011 and June 2012.

The prediction for the rest of the world is that EB-2 priority dates will remain current in 2012, and the prediction for the EB-3 is that dates will advance about four weeks per month, moving ahead almost six months between December 2011 and June 2012.

Mr. Oppenheim explained that priority date predictions are hard to make because the number of people in the queue is difficult to estimate due to the unknown number of spouses and minor children who will apply for a visa number with each foreign national.

Continue reading "Department Of State Makes Predictions Regarding EB-2 and EB-3 Priority Dates For India and China" »

US Citizenship & Immigration Service announced this afternoon that it has received sufficient H-1B visa petitions to reach the annual numerical quota for this federal fiscal year. The announcement came one day before the Thanksgiving holiday while Immigration lawyers nationwide were scrambling to file last minute H-1B visa petitions. Our own law firm attorneys had planned to work through the holiday weekend to meet the demands of our clients when the news was released thereby bringing H-1B visa petition filing this year to a screeching halt.

Our law firm had performed a statistical and progression analysis and announced in our newsletter that the cap will be met by Thanksgiving this year. "We were right on the mark!!" said attorney Gus Shihab, founder and CEO of the Law Firm of Shihab & Associates. "our analysis were almost perfect in predicting when the H-1B visa cap will be reached this fiscal year."

We are now in federal fiscal year 2012; the H-1B visa quota was just met in November 2011. In comparison, federal fiscal year 2011 H-1B visa quota was met by January 2011 while federal fiscal year 2010 H-1B visa quota was met in December 2009. Hence, this year's H-1B visa cap announcement comes earlier than the last 2 years indicating a recovering economy since there is a strong correlation between H-1B visa usage and the employment of highly skilled US workers.

Is the H-1B Visa Numerical Cap Needed?

Congress instituted the H-1B visa cap limitation in order to "protect" US workers. The idea is that importing foreign nationals in highly skilled jobs could adversely affect the working conditions of Americans. This premise, however, has been unequivocally disproved by numerous studies which concluded that the employment of foreign nationals in Specialty Occupations (H-1B), has a positive impact on the country's innovations and advancement. Furthermore, the linear relationship between H-1B visa demand and a stagnant economy showed that as the economy slowed down, so did the number of H-1B visa petitions filed. Hence, employers were not racing to replace US workers with, as opponents claim, cheap foreign labor. To the contrary, when the US economy suffered, demand for H-1B visa workers was drastically reduced.

Since there is a strong correlation between innovation and H-1B visa workers, and since the employment of foreign nationals in H-1B visa status does not adversely affect American workers, it follows that the H-1B visa numerical cap stifles US innovation and technology.

The H-1B visa cap should be abolished.

The Department of State has issued its Visa Bulletin for December 2011. The new bulletin shows a five month jump in the priority date cutoff in the EB-2 category for foreign nationals born in India and China. Persons in this category with a priority date of March 15, 2008 or earlier are now eligible for immigrant visas. Because of the five month jump, some people in the EB-2 category are now current who may not have been expecting it. Others may be unaware completely. Persons with pending or approved I-140s in the EB-2 category should double check their priority dates and contact the Law Firm of Shihab and Associates with any questions about their current eligibility for lawful permanent residency.

Unfortunately, the EB-3 category for China and India born foreign nationals only advanced one month from the current priority dates in the November 2011 Visa Bulletin. The EB-3 category remains stagnant, with the backlog for Indian born persons now over nine years. Some people with labor certifications qualifying them for EB-3 classification may now have the requisite years of experience or an advanced degree allowing them to now pursue an EB-2 classification. Persons interested a possible "EB-2 upgrade" should contact the Law Firm of Shihab and Associates for a consultation to see if they qualify.

On May 26, 2011 the US Supreme Court ruled that Arizona's mandatory E-Verify law is constitutional and can go forward thereby requiring all businesses operating in the State of Arizona to use this federally created voluntary pilot system, on a mandatory basis. A month later, the Ohio Legislature introduced Senate Bill 286 which is an Arizona E-Verify copycat bill, purporting to also mandate Ohio businesses to use the E-Verify employment eligibility verification online system. This article will explain that the proposed Ohio E-Verify law is bad for Ohio's businesses and bad for Ohio's economy. The current E-Verify system is riddled with inaccuracies and a mandatory compliance law will cost Ohio employers and citizens millions of dollars in administrative overhead and down time.

The Arizona Case

The US Chamber of Commerce had sued the State claiming that federal immigration laws may not be enforced by any State and that such enforcement is exclusively reserved for the federal government. They cited the sweeping 1986 immigration reform which stripped the States from any ability to undertake any such enforcement actions. In reality, however, Congress did leave a clause in such laws allowing the states to legislate regarding "all licenses necessary to operate the business." It was from this narrow clause was that the State of Arizona able to successfully defeat the constitutional challenge to its E-Verify legislation.

In a 5-3 ruling, Chief Justice John Roberts wrote the majority opinion stating that Arizona had the authority to legislate enforcement provisions for its employment verification apparatus. "We hold that Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the states and therefore is not expressly preempted," the Chief Justice ruled.

The Ohio Mandatory E-Verify Proposal

Ohio's E-Verify copycat legislation was introduced in the Ohio Senate on Wednesday June 29, 2011. Representatives Combs and Bubp introduced this bill, which would require all Ohio employers - both public and private - to use the E-Verify system in ensuring the employment eligibility of new hires. The bill also outlines provisions for filing complaints and sanctions for employers that hire illegal aliens, which include firing all such workers, revocations of business license as well as criminal liability for violators. As of the date of this article, this proposed law was not referred to committee.

Why Ohio's Mandatory E-Verify Program is Bad for Ohio's Employers

A Mandatory E-Verify law in Ohio would cost Ohio employers millions of dollars in administrative cost plugging in data in the federal E-Verify system. Many rural employers do not have the skills or the high-speed Internet connectivity to do so. Furthermore, in many small businesses that do not have an HR department, the compliance will fall on the shoulders of the owner of the business herself which is not practical.

Errors in the E-Verify system itself will cost 800,000 workers nationally to lose their jobs and $3.6 million to correct such errors according to government data. The loss of such workers in today's high unemployment reality is certainly bad news for Ohio's workers and their employers. Such government data suggest that the error rate in E-Verify are even higher for employers who have a higher percentage of immigrant worker population as is the situation in many sectors of the workforce including high tech. and agricultural, and construction jobs. Green card holders and recently naturalized foreign nationals are ten times more apt to be erroneously identified by the system as ineligible to accept employment. Hence, Ohio's proposed mandatory E-Verify system will have the unintended consequence of discriminating against such workforce.

The Congressional Budget Office estimates that a mandatory E-Verify system will decrease national tax proceeds by $17 billion over a decade. Ohio's share of such proceeds will proportionally decrease as a result. Immigration lawyers in Columbus and Ohio as a whole have voiced their objection to this proposed legislation and plan to testify in opposition. Please join us in opposing this ill advised proposal.

At a time when Ohio is trying to lift itself out of an economic rut, a mandatory E-Verify system seems to take us deeper and deeper in the hole.

The H-1B visa cap experience in calendar year 2011 has been a remarkable copycat performance of last year and the year before that. Unlike prior years where all cap-subject 85,000 H-1B visas were consumed in one day (April 1 or shortly thereafter), the last three years have shown a screeching slow down for H-1B visa usage with visas available well into Christmas and New Year's. This experience is shared by Columbus immigration lawyers alike. For instance, as of October 14, 2011, there remains more than 20,000 new H-1B visas available this federal fiscal year.

I have been closely monitoring the H-1B visa usage during the last three years and have noticed a remarkable similarity in the rate of its consumption. This is indicative of a stagnant economy and one where reliance on highly skilled foreign labor has decreased when compared to 2008 and prior years. An examination of the H-1B visa usage since July 2011, however, shows a stronger absorption rate than was experienced in the prior two years indicating a possible growth in certain industries which rely on highly skilled labor.

In July of this year, I had performed a statistical comparison between this federal fiscal year's consumption of H-1B visas to the prior year and concluded that a slower consumption of H-1B visas was reported earlier in the year but later weekly usage showed a slightly stronger consumption than the year prior. Now three months later, the rate of consumption for new H-1B visas is somewhat stronger than last year on a weekly basis. I predicted that H-1B visas will be consumed this federal fiscal year between Thanksgiving and New Year's. This projection continues to be true based on analysis of H-1B visa consumption this year.

Noticeable Rush for H-1B Visas After July 2011

In examining the rate of consumption this year, two patters emerge: one from April to July and another from July 2011 onward. The rate of consumption from April to July 2011 was more linear with approximately 700 to 900 new petitions received by the USCIS on a weekly basis. From July onward, however, the rate of consumption appears to have jumped to an exponential curve with an increasing rate of consumption weekly to 2300 H-1B visas between October 7 and October 14, 2011. Hence, there appears to be a rush to acquiring new H-1B visas as the year nearing to end. If you compare this rush to acquire highly technical labor against the overall US job growth, one certainly gets confused; the US has reported a disappointing zero job gain in the second quarter of 2011. But in examining employment data released by the US Bureau of Labor Statistics on October 7, 2011 covering the period ending September 30, 2011, one finds that there has been measurable growth in education, construction, healthcare, telecommunication, manufacturing and consulting services. Those industries grew by about 500,000 workers between August and September of 2011.

Continue reading "H-1B Visa Cap Predication and Update" »

A federal court of appeals blocked some parts of Alabama's controversial new immigration law last week, but much of the law remains in effect. While this law only applies in the state of Alabama, it has influenced lawmakers and immigration reformers all over the country. Alabama's law pits the federal government, which has authority over immigration matters under the U.S. Constitution, against a state government seeking its own reform. The outcome of this dispute, and the enactment and enforcement of the Alabama law, will have nationwide impact on immigration matters.

The law affects many aspects of government operations, including law enforcement, education, and the civil court system. It also saddles Alabama law enforcement with a duty to check people's immigration statuses, and at times to determine whether a person is present in the United States legally. As any immigration attorney knows, this is a difficult determination to make, and law enforcement without specialized training in immigration laws may not be in the best position to do so. The Obama administration took Alabama to court to challenge its legal ability to legislate immigration matters, arguing that the Constitution grants that power exclusively to the federal government. A ruling from the Eleventh Circuit Court of Appeals in Atlanta last week gave partial victories to each side of the dispute.

The court's ruling blocks some of the law's more controversial provisions, but leaves many more in place. The court will review the constitutional questions presented in the case and make a more thorough ruling later. The court blocked the section requiring state officials to check the immigration status of public school students. It also blocked a provision creating a misdemeanor offense for immigrants who willfully fail "to complete or carry an alien registration card," something critics described as allowing law enforcement to demand papers from people they suspect of being undocumented, with few guidelines on how to make that determination.

Provisions of the law remaining in force include one that requires law enforcement, during lawful stops or arrests, to try to determine a person's immigration status if they suspect the person is undocumented. Another provision still in force bars state courts from enforcing contracts that involve undocumented immigrants, and another makes it a felony for undocumented immigrants to enter into "business transactions" in the state. This last provision may make it illegal for someone to apply for a driver's license or even to hook up utility services.

Continue reading "Appeals Court Blocks Portions of Controversial Alabama Immigration Law" »

The US Citizenship & Immigration Services (USCIS) recently announced that it will be altering decades' worth of a well established procedure which has Columbus Ohio immigration lawyers and their clients confused and angry.

For as far back as I can remember in the 18 plus years I have been practicing immigration law, the USCIS's established procedure called for mailing approval notices relative to employment based non-immigrant visas (such as H-1B visas) directly to the attorney who had filed a signed Notice of Entry as an Attorney of Record along with the petition. That procedure allowed the attorney to carefully monitor the progress of the case during the USCIS adjudication process as well as post the approval of the case itself. Simply put, the prior procedure worked well.

Now, the USCIS wants to fix a procedure which was never broke. The new procedure now calls for mailing the approval notice for such non-immigrant visa petitions (also known as the I-797 Notice of Action) directly to the sponsoring employers, instead to the attorney of record. US immigration lawyers believe that this is yet another way the USCIS seeks to drive a wedge between them and their clients, the petitioning employers.

The American Immigration Lawyers Association has sharply criticized the new policy thereby requesting the USCIS to restore the prior procedure. The USCIS held a teleconference on October 12, 2011 to review this new procedure. Interestingly, in its announcement for the teleconference, the USCIS offered an unusual way to have immigration attorneys continue to receive the I-797 approval notices by including on the petition for non-immigrant worker (Form I-129) the attorney's address in the filed where the company's address must be entered. This, as the USCIS explained, will cause the USCIS to mail the approval notice to the attorney instead of to the company. The USCIS warned, however, that it utilizes the Validation Instrument for Business Enterprises (VIBE) process, which relies on the business address of the employer to validate whether the petition is filed fraudulently. Using the attorney's address on Form I-129 may disrupt the VIBE process, the USCIS explains and advised attorneys to enclose a separate sheet along with the petition indicating the true address of the employer in order to avoid such discrepancy (without any guarantees).

What a disaster!!! In other words, the USCIS is encouraging attorneys to intentionally misrepresent the address of the employer on Form I-129 and to risk having the employer's identity validated in order to do her job of correctly monitor the progress of the case and advise the client efficiently.

I join my immigration attorney colleagues in stating that this is an ill-advised policy for many reasons. but, before delving into the problems that I see with this new procedure, I would like to share with you the steps that we normally undertake once we receive an employment based non-immigrant visa approval notice on behalf of our client's employees. For the last 10 years in my practice, I have utilized an intricate on-line document storage, data gathering and reminder system integrated into a proprietary web-based processing portal. Upon receipt of an approval notice, we scan and upload it to our immigration processing portal. An instant reminder is created in our system which will alert us to contact the client six (6) months prior to the expiration of the employee's status. Then an email is generated to the client and the employee informing them that their case has been approved. Finally, the approval notice is mailed to the employee providing them with tips about maintaining their status and advising them what to do in the event they need to travel. (Our law firm was named finalist in innovation by TechColumbus in 2008. We now utilize a vendor-based system which we call ShihabEDGE.)

With the approval notices now going to employers, these valuable practices will be compromised. Unless the employer has in-house counsel versed in immigration-related matters (which is very rare), the employer does not possess the skills or resources to monitor the expiration status of their employees' status and/or to advise them regarding the procedures in obtaining visa stamping.

We must remember that the non-immigrant visa approval notice in most scenarios has THE ONLY PROOF of the foreign nationals legal status in the United States. It must be surrendered to the foreign national promptly. with some large employers, the approval notice may arrive on the wrong desk and the recipient may not know what to do with the approval notice or who in the large organization should dispose of it. The attorney on the other hand has direct access to the foreign national and can ascertain that she receives it timely.

The recent policy by USCIS is ill advised; it wastes time and increases the employer's costs. I urge all employers to contact their congressmen to put pressure on the USCIS to reveres this unnecessary procedure. Tell the USCIS that the prior system worked just fine and there is no reason to drive a wedge between the attorney and the employers they represent. If it ain't broke, don't fix it!

A new film, "Like Crazy," is making the rounds of film festivals, winning a top award at Sundance this year. It tells the story of two college students in Los Angeles who meet and fall in love. Jacob is an American, and Anna is a British exchange student. Anna overstays her student visa and then returns home to London. When she tries to fly back to Los Angeles, she finds herself barred by officials at the airport. This sets up the main action of the film, in which the two must find a way to continue their relationship despite the trans-North America, trans-Atlantic distance between them.

While the film primarily acts as a love story, it offers a glimpse of the issues faced by spouses, fiancees, and lovers who find themselves separated by immigration laws. An immigration lawyer certainly knows that these situations present complicated and emotional issues. Anna certainly made a mistake by overstaying her student visa. If she came to the United State on a J-1 student visa, for example, she may have been subject to a requirement that she return to her home country for at least two years, even if she did not overstay her visa period. J-1 visas typically allow a visitor to stay in the U.S. up to 30 days after their educational program ends, but they must then depart. Overstaying a student visa could lead to ineligibility to return to the U.S. for years.

Is there anything the young lovers in the film could do? Overstaying the visa made it difficult, if not impossible. If the two were to get engaged, and she did not overstay her student visa, they might be able to get a fiancee visa, known as a K-1. An American usually petitions for a K-1 while the fiancee is still abroad. Both fiancees must show they are legally eligible to get married in the petitioner's state of residence. They must show evidence that they will not become public charges, and that the engagement is legitimate. One specific requirement is proof that the fiancees have met in person at least once in the previous two years, which is intended to deter sham marriages. They must get married within 90 days of the immigrant's arrival in the U.S.

Continue reading "New Film Addresses the Issue of Student Visas, Immigration, and Young Love" »

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.