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.

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" »

A class action lawsuit was filed last week against US immigration agencies on behalf of many asylum applicants who were wrongly denied work authorization, A.B.T., K.M.-W., G.K., L.K.G., D.W. v. USCIS; EOIR (Case No. 2:11-cv-02108 A.B.T). The nationwide lawsuit was filed by the American Immigration Council's Legal Action Center (LAC) against the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) in the United States District Court in Seattle. The suit alleges that the USCIS and EOIR delays violate the Constitution, federal statutes, and governing regulations.

Asylum seekers are not eligible for work authorization during the 180-day period after the application is filed. But according to federal law, asylum applicants are to be granted work authorization after the application has been pending for 180 days. Due to unlawful and unfair practices and policies, U.S. immigration agencies have prevented asylum seekers from obtaining work authorization after the 180-day waiting period has elapsed. For example, one named plaintiff in the lawsuit is a man from China who filed his asylum application in 2003, and he has been pursuing work authorization for years without success.

In calculating the 180-day period, the USCIS relies on immigration judge determinations who work for the EOIR, which results in arbitrary policies on when the 180-day "clock" should start and stop. This, along with the increasing backlog in U.S. immigration courts, has unlawfully prevented asylum seekers from working. According to the lawsuit, these unlawful policies and practices prevented asylum applicants from obtaining work authorization and forced them to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications, and this process can take many months and sometimes years.

The 180-day period (or "asylum EAD clock") may be suspended, but only for applicant-requested or caused delay of the adjudication of their asylum application, according to the lawsuit. USCIS and EOIR policies result in EAD clocks being arbitrarily started and stopped, and even permanently stopped in some cases. Many asylum seekers have not received adequate notice that their EAD asylum clocks have stopped, and they are consequently deprived of a meaningful opportunity to remedy these determinations.

Continue reading "Class Action Lawsuit Alleges Asylum EAD Clock Is Unfair" »

A campaign led by U.S. Citizenship and Immigration Services (USCIS) intends to educate immigrants, both documented and undocumented, regarding common scams purporting to be legitimate immigration services. The Unauthorized Practice of Immigration Law Initiative began in seven U.S. cities including Detroit, and includes advertisements and printed materials in both English and Spanish. Its website has educational materials available in at least fourteen languages. The USCIS has partnered with the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), the Federal Trade Commission (FTC), the Department of Justice (DOJ), and the Board of Immigration Appeals (BIA) for this campaign. They are also engaging state and local agencies to improve communication and facilitate enforcement of laws prohibiting immigration scams.

USCIS offers a list of common scams targeting immigrants. People using the title "Notario Publico" sometimes rely on a difference in the meaning of that title between the U.S. and Latin American countries in order to lure immigrants from those areas. A "notary public" in the U.S. has basic authority to witness signatures and administer some oaths. In some parts of Latin America, the title refers to someone with lawyer-like credentials and authority, leading some immigrants to incorrectly think they have the authority to render legal services.

Some sophisticated scammers set up websites offering guidance on immigration paperwork with URL's closely resembling official sites. The sites often directly copy design elements of government websites. The telltale sign of a scam website is a fee to download official immigration forms. All official forms are available for free on USCIS's website.

A particularly damaging type of scam involves the Department of State's diversity lottery, which makes 50,000 visas available each year to certain people from countries with low immigration rates. Scam services may claim to be able to help improve someone's chances of being selected in the lottery. Ohio's chapter of the League of United Latin American Citizens (LULAC) issued a warning regarding Ohio-based scams targeting applicants for the diversity lottery.

Another scam that may seem obvious to immigration attorneys can ensnare people who do not know about the many changes to federal immigration agencies over the past decade. Scammers claiming to work with the Immigration and Naturalization Service (INS) may prey on immigrants. The INS has not existed since 2003, when it became part of DHS and its functions were divided between USCIS, ICE, and other agencies.

Continue reading "Officials Launch Campaign to Raise Awareness of Immigration Scams" »

An Ohio business owner received a nine-month prison sentence from a federal district judge in Dayton last month, according to a press release from Immigration and Customs Enforcement (ICE). The man, 47 year-old Amarnath Trichy, was accused of filing false labor certification applications and employment-based immigration petitions for non-existent jobs with a fictitious company. His legitimate business, Recursive Technologies, Inc. (RTI) apparently developed a software project in 2005, called MEDBPO, intended to produce software to maintain electronic patient medical files. The company was never actually established, but Trichy reportedly filed multiple documents with the U.S. Department of Labor on behalf of MEDBPO beginning in 2005, and continuing for about five years, certifying a need for immigrant workers for positions U.S. citizens could not fill.

The first step for an employer in bringing a foreign worker to the United States, with the intention of obtaining legal permanent resident status, is to apply for "labor certification" from the Department of Labor. The employer must certify that, after a reasonably extensive recruitment process, it cannot find suitable U.S. workers for the position. The immigrant worker must not displace available U.S. workers by law. The wage offered to the immigrant must also meet certain standards set by the Department of Labor, as a means of trying to prevent immigrant labor driving down wages for other workers. The employer must demonstrate that it is financially sound enough to pay the proposed wage.

Officials alleged that Trichy would interview applicants for non-existent jobs with MEDBPO, and would demand payment of $1,500 to $2,000 from job applicants in exchange for assistance with their visa petitions. He filed as many as 248 petitions with the Department of Labor, and U.S. Citizenship and Immigration Services (USCIS) approved at least 26 visas for immigrant workers for his company.

The Department of Labor's Office of the Inspector General investigated irregularities in Trichy's case, along with ICE's Homeland Security Investigations (HSI) division. Federal officials charged Trichy with fraud and misuse of official documents. He pleaded guilty to one count on December 14, 2010. The judge in the Dayton federal district court issued his sentence on November 1, 2011.

Federal criminal statutes treat the offense of "fraud and misuse of visas, permits and other documents" very seriously. The federal criminal code makes it a crime to knowingly forge or falsify any official immigration document. Penalties vary based on the defendant's intent. The statute sets aside a specific penalty of up to five years' imprisonment for fraudulent acts committed as part of a plan to unlawfully employ immigrant labor.

Continue reading "Ohio Business Owner Sentenced to Prison for Employment-Based Immigration Scam" »

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" »

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.

An immigration judge in Ohio has ordered the deportation of a dance troupe member after the group was stopped by police passing through the state on their way to Joliet, Illinois from New York. Five members of an Aztec dance group were on their way to a dance ceremony on October 21 when they were pulled over by police in Ohio, as reported by Fox News Latino. Four members of the group are from Mexico and one is from Guatemala. All five are undocumented. When police discovered their immigration status, they turned them over to Immigration & Customs Enforcement (ICE). Their case illustrates some of the problems faced by entertainers seeking to come to or stay in the United States.

The judge's order met with alarm in New York, where the dance group is well-known in the arts scene. Supporters in New York raised around $3,000 for the members' legal defense, and a group in Chicago has formed to help the members' families.

Four members of the group were released on bail. Of those four, two have until December to voluntarily depart the country, and two have another court date. Only one, Joel Almeida Gonzalez, was ordered deported right away. According to the judge's order, he is to be returned to Mexico on November 8.

A representative of a dance group in Chicago who is familiar with the five dancers, Roberto Ferreyra of Nahui Ollin, stated that the case demonstrates the need for a change in immigration law that would allow productive immigrants to remain in the country. "There should be a way that people who contribute to this country can work," he said. Currently, immigration law does not have a specific procedure for legal immigration of artists, unless they come on an employment-based petition. Given that entertainers and artists rarely have full-time, long-term employment with a single company or organization, this may not be a viable alternative for most. Options available specifically to artists include the "O" or "P" visa, nonimmigrant visas available to artists visiting for specific events. They only apply to temporary visits and do not, by themselves, lead to any permanent immigrant status. They also require a sponsor in the U.S. to file the petition, and they have a large number of criteria that a prospective visitor must meet.

Continue reading "Judge Orders Deportation of Undocumented Dancer Passing Through Ohio" »

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" »