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.

Highly-skilled workers may immigrate to the United States with an EB visa, which offers them a path to permanent residence and perhaps citizenship. Workers already present in the U.S. with a temporary work visa, such as an H-1B, may also qualify to obtain a green card. Current U.S. immigration law only allows issuance of 140,000 green cards to people with temporary work visas. Additionally, every year immigration authorities can only grant seven percent of the total number of EB visas to applicants from any one country. This means that applicants from countries with few total applications may receive a visa quickly, while applicants from high-volume countries may wait years for approval.

A bill introduced in Congress last year, the Fairness for High-Skilled Immigrants Act, would remove the numerical caps on individual countries, significantly reducing the wait time for applicants from high-volume or "oversubscribed" countries like India. The bill passed the House of Representatives in November on a vote of 389 to 15, but it has stalled in the Senate. Critics point out that, while it may reduce wait times for applicants from some countries, in so doing it may substantially increase the wait time for others. It could potentially even exclude entire countries with low application rates. Critics also contend that the bill fails to provide for U.S. citizens who may also want high-tech jobs in a period of high unemployment.

The Washington Post profiled a couple living in suburban Washington, DC who came here from India seven years ago on temporary worker visas. Both work in high-tech jobs and have applied for permanent residence. Because of the high volume of applications from Indian nationals, they continue to wait. Under the terms of their temporary worker visas, they cannot change jobs or make significant changes to their living situations, and they must renew their visas every two years. They, and many other immigrants from countries like India and the Philippines, must live in a sort of suspended state while they wait for their applications to come up through the backlog.

The new bill would effectively eliminate the quota system established by current law. This could substantially benefit applicants from those large-volume countries, but applicants from lower-volume countries are less enthusiastic. The Post quotes an electrical engineer from Bangladesh, a country with far fewer visa applicants than neighboring India. He worries that the law would allow Indian applicants to "cut in line" in front of him, extending his wait time.

Continue reading "Bill Aimed at Streamlining the Immigration Process for Highly-Skilled Workers Meets with Controversy" »

The "Self Check" program, part of the U.S. Citizenship and Immigrations Services' (USCIS) E-Verify system, allows immigrants to check their own eligibility for employment through an online database. Now available in limited areas, including Ohio, USCIS recently announced that it will soon make the service available around the country. It is also requesting feedback from people who use the program

The E-Verify program itself allows employers to compare information provided by an employee on a Form I-9 to a database maintained by DHS. Employees have had little to no involvement with E-Verify itself, since employers mainly accessed the service. Errors or discrepancies in the database sometimes caused problems for employees, as otherwise employable immigrants appeared in the database as lacking employment authorization for one reason or another. USCIS says they launched Self Check in part to combat this problem.

USCIS launched Self Check on March 21, 2011 as a means of improving the efficiency of the E-Verify program by allowing immigrants and job applicants to access their employment eligibility information directly. The system also gives people an opportunity to spot errors in their records and work to correct inaccuracies, particularly discrepancies between records kept by the Department of Homeland Security (DHS) and the Social Security Administration (SSA). Errors in federal immigration databases can cause all manner of problems ranging from inaccurate records of employment eligibility to mistaken imprisonment. USCIS has issued assurances that all personally identifiable information will be secured and not misused.

The program was first available in five states and the District of Columbia. It is currently available in twenty-one states. USCIS states that that over 50,000 people have used the service since it launched. It hopes to expand to all fifty states within the next few months.

People can access Self Check by first entering identification information on the website, such as name, address, or date of birth. The service then asks users to confirm their identity with questions from a third-party verification service. These may be similar to questions used in online credit report services. Users then provide a social security number or Alien Registration Number to access database records. Self Check will search through databases maintained by DHS and SSA. It will also provide users with information on how to contact SSA and DHS to resolve errors or inconsistencies in database entries.

Continue reading "USCIS's "Self Check" Program Will Soon Go Nationwide" »

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 " »

Alabama's controversial immigration law, passed earlier this year, invited yet more scrutiny several weeks ago when police arrested a German businessman. Police pulled the man over just outside Tuscaloosa on November 16. He was driving a rental car that did not have tags, and he only had a German ID. Since Alabama's law requires police to investigate the immigration status of people involved in traffic stops, they arrested him. The man turned out to be a Mercedes-Benz executive visiting the company's 3,400-employee plant in Tuscaloosa.

The Mercedes-Benz plant is one of Alabama's great success stories of the past few decades. The company's 1993 decision to open the Tuscaloosa facility paved the way for similar plants by Honda, Hyundai, and Toyota, according to Bloomberg News. Mercedes-Benz itself described the arrest as "unfortunate" and declined additional comment. The incident has fed a growing sense among Alabama business leaders, some would say finally, that the law does more harm than good for the state's economy.

In other parts of the state, leaders are already sensing that the law is driving away not only workers, but investors and foreign employers. In March of this year, Golden Dragon Precise Copper Tube Group, a Chinese manufacturer, announced its intention to build a $100 million factory, employing at least 300 people, in Thomasville, Alabama. The company has now hinted that it will consider other offers elsewhere, which has Thomasville's mayor scrambling to do damage control. Other states are even trying to woo Mercedes-Benz and other large companies away from Alabama.

State leaders claim they intended the law to deter undocumented workers and increase the number of available jobs for unemployed Alabamans. Alabama is already very low on the national scale of economic strength and employment rates, and the new law has shown no signs of improving that. Fields of crops lay rotting because the people with experience working those fields either stayed away for fear of arrest or fled the state entirely. Small businesses in small towns and big cities alike across the state told a New York Times reporter that business was significantly down as their regular customers vanished.

Continue reading "Alabama Immigration Law Shows More Unintended Consequences After Arrest of German Businessman" »

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" »

The H-1B Visa category for specialty occupation workers offers many foreign nationals and American companies a great opportunity to engage in a mutually beneficial working relationship on a temporary basis. Thousands of highly skilled professionals and specialists from around the world have utilized the H-1B visa for their personal benefit, for the benefit US employers and to the benefit of the US economy in general. However, in recognition that unscrupulous US employers could potentially take advantage of an immigrant's desire to work in the United States, Congress placed various safeguards and mandated certain duties that H-1B employers must adhere to, or risk liability for back wages and penalties. Below, I will discuss the employer's responsibility to pay the higher of the prevailing wage or the actual wage to H-1B workers under Federal Law.

Continue reading "H-1B Visa Violations: Employee's Rights, Employer's Responsibilities" »

Recent events have offered mixed news for immigrants and the attorneys who advocate for them, with some positive events occurring in the midst of an often-negative atmosphere for immigrants. Ohio is now experiencing the effects of the dispute between, on one side, those who support the rights of immigrants and tout the benefits immigration can have for local economies, and those who advocate greater restrictions on immigration at all levels.

We have previously reported on limits placed by the courts on some of the harsher provisions of anti-immigrant laws enacted in Arizona and Alabama, but the broader effect of those laws elsewhere in the nation remains to be seen. Last week saw the successful recall of Republican Arizona state senator Russell Pearce, the author of that state's controversial 2010 immigration law. Immigration advocates tout this as a victory for immigrant rights and a move towards a sensible immigration policy. Of course, many issues factored into Arizona voters' decision, but it is difficult not to see this as a major win for immigrants.

Ohio has also seen recent progress in immigrants' rights, with efforts from business leaders to attract immigrant investors and the decision by the city of Dayton to formally become "immigrant-friendly." A Chippewa Herald op-ed recently touted the importance of immigrants to Ohio's economy and the folly of blaming immigrants for the state's economic problems, noting recent efforts to attract immigrant investors and entrepreneurs to the area. The author makes the uncomfortable, but perhaps necessary, argument that immigrants will often perform jobs that others in Ohio will not, citing the example of Alabama farms that cannot attract non-immigrant labor.

At least one Ohio leader does not share this enthusiasm for immigrants, however. Sheriff Richard K. Jones of Butler County recently sent a letter to Governor John Kasich requesting assistance in creating stiffer penalties for immigrants and employers who hire undocumented labor. The sheriff's letter cites certain economic problems he associates with illegal immigration. He asks the governor to assist state legislators who are trying to pass legislation that would increase punishments for employers hiring undocumented workers and undocumented immigrants who break Ohio laws, as well as empower local law enforcement to make arrests for immigration violations. The similarities to the Arizona and Alabama laws are clear.

Continue reading "Controversy Over State Immigration Laws Comes to Ohio" »

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.

The United States Citizenship and Immigration Services (USCIS) announced last week that it is changing the format of two important documents: the Employment Authorization Document (EAD) and the Form N-560 Certificate of Citizenship. The agency's intent in modifying these documents is to enhance some security features and deter fraud and counterfeiting. It began issuing new EAD's on October 25, 2011 and new Certificates on October 30. The agency has launched several initiatives in recent years to combat immigration document fraud, including the E-Verify system, used to validate identity documents.

The EAD, commonly known as a "work permit," allows nonimmigrants who are lawfully present in the United States on certain types of temporary visas to work for a specified period of time. USCIS must adjudicate an application for a work permit within ninety days of receiving it, or else it must issue an "interim EAD" to the applicant. The interim EAD allows the applicant to work for some period of time or until USCIS adjudicates the application. Employers may hire individuals with a valid EAD without any further authorization from immigration authorities. Form I-9, the Employment Eligibility Verification form that employers must collect from every new hire, lists the EAD among its "List A" documents. These are documents that, by themselves, confirm an employee's eligibility to work in the U.S. These include a passport or a green card in addition to an EAD. Employers often use the E-Verify system to confirm the validity of identification documents submitted with a Form I-9. An EAD typically does not limit the type of work someone may do.

USCIS developed the new design in collaboration with the Forensic Document Laboratory at Immigration and Customs Enforcement (ICE). It features more complex design elements and multilayered components to deter copying or counterfeiting, and each card will have some personalized elements for fraud prevention. The new card displays the worker's alien registration number more prominently and includes other identifying information.

The Form N-560 Certificate of Citizenship serves as evidence that a person has become a U.S. citizen through certain processes. It is available children of U.S. citizens born abroad and children whose parents became naturalized before the children turned 18. This form is different from the Certificate of United States Naturalization available to citizens who went through the full naturalization process. The N-560 is no longer a "List A" document on Form I-9, and so is not sufficient by itself to establish a person's eligibility to work.

The revised form uses a printing process that offers additional protection against fraud and document tampering, and it incorporates design features that deter copying or counterfeiting. USCIS claims that the new processes reduce the reliance on human labor and therefore cut down on the possibility of human error.

Continue reading "Design Changes, Meant to Improve Security and Fight Fraud, are Coming for Employment and Citizenship Forms" »

Immigration law sets a limit on the number of foreign workers with highly specialized job skills that can come to the United States in a particular fiscal year. These limits can affect workers in certain countries more than others. Legislation introduced in the House of Representatives by Utah Republican Jason Chaffetz may change that. The bill, called the Fairness for High-Skilled Immigrants Act, would remove the limit on the number of immigrant visas authorized for workers from countries with a significantly higher number of immigrant petitions.

Congress sets a cap on the total number of visas for skilled workers, known as employment-based (EB) visas for permanent workers and H-1B visas for temporary workers, that may be issued in a given fiscal year (October 1 to September 30). About 140,000 EB visas are issued per fiscal year. EB visas are available in five preference categories, designated EB-1 to EB-5. EB-1 workers include professors, executives, and people of "extraordinary ability." The preference categories determine the order in which visas are granted, but they should not necessarily be construed as a judgment as to a worker's value. According to U.S. Citizenship and Immigration Services (USCIS), most workers seeking the H-1B visa are subject to an annual cap of 65,000 total visas.

In addition to the overall cap number for EB visas, decades ago Congress established allocations of visas available for specific countries. Immigration law states that no more than 7% of the total number of visa petitions filed in a fiscal year may go to workers from a single country. As workers from different countries seek to immigrate to the U.S. at different rates, this creates significant differences in waiting periods.

The U.S. Department of State issues a monthly Visa Bulletin, which collects data from consular posts around the world listing immigrant visa petitions received in categories with numerical limitations. The monthly bulletins offer an idea of how long petitioners from certain areas and in certain categories must wait. For EB-1 applicants, USCIS is often up-to-date on reviewing and approving or denying petitions. For lower-priority applicants, there is often a backlog. For lower-priority applicants from "oversubscribed" countries, the wait can be very long. "Oversubscribed" countries are ones where the number of petitions receive routinely exceed the 7% limit set by statute. Mexico, India, the Philippines, and mainland China are all considered oversubscribed. Applicants from these countries can wait years for a decision.

Continue reading "New Bill in Congress Proposes Increasing Immigration of Highly-Skilled Workers" »

Farmers in Ohio are expressing concern over a plan to use the "E-Verify" system to screen employment applicants' immigration status. The system cross-references an employee's name and social security number with other information to verify citizenship and/or employment eligibility. Farmers state that they worry the system may scare away workers who, despite being legally allowed to work in the U.S. either through citizenship or work authorization, are wary of perceived anti-immigrant climates in many states. The workers most likely to be impacted by this system are the ones farmers most rely on during busy crop seasons.

E-Verify is a free digital service offered online by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration. Almost 300,000 employers use the service, and the government says that 1,400 business register for the service daily. This only accounts for about five percent of all employers in the U.S. The system maintains a digital database of information, which it compares to information supplied on an employee's Employment Eligibility Verification Form I-9. An employee is free to work if the information matches. In the event of a mismatch, the system notifies the employer. The employee may work while the mismatch is resolved, but the employer and employee must take steps to resolve the matter within eight work days. Only a few states require employers to use the system for their employees. Ohio does not have any specific requirement.

Employers are required by the Immigration Reform and Control Act of 1986 (IRCA) to verify that new employees present at least "facially valid" documentation establishing their identity and their authorization to work. Employees must complete an I-9 form when they begin employment, providing some personal information and certain forms of identification. The employer must keep this information on file until three years after the hire date or three years after employment ends, whichever is later.

IRCA imposes penalties against employers who do not comply with I-9 requirements. An employer who hires an unauthorized worker could face fines from $250 to $5,500 per worker, as well as a bar from receiving federal contracts for up to one year. A person who makes false statements or uses false documents with an I-9 faces fines or imprisonment. Fines start at $375 for one offense, and at $3,200 for subsequent offenses.

Continue reading "Fear of Crackdown on Undocumented Immigrant Hits Ohio Farms" »

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" »