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.

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 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" »

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 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" »

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!

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.

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)!

Continue reading "H-1B "Specialty Occupation" Work Visas Aplenty" »