Articles Posted in Colleges & Universities

Market Research.jpgThe position of Market Research Analyst does qualify as an H-1B specialty occupation even though it does not require a baccalaureate degree in that single academic discipline, according to a recent decision by the United States District Court for the Southern District of Ohio, Eastern Division (Residential Finance Corporation v. U.S. Citizenship and Immigration Services, Case No. 2:12-cv-00008 03/12/12).

Residential Finance Corporation (RFC) filed a petition seeking an H-1B visa to employ a prospective employee in the position of a Market Research Analyst. The USCIS subsequently denied the petition on the basis that the “Market and Survey Researcher” section of the Occupational Outlook Handbook (OOH) does not indicate that market analyst research positions normally require at least a bachelor’s degree in a specific specialty. The USCIS concluded that the occupational category was not a specialty occupation because the OOH did not specify that a specific specialty degree is required for the position.
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Capitol Hill.jpgThe Fairness for High-Skilled Immigrants Act, H.R. 3012, passed the U.S. House of Representatives this week with almost unanimous approval with a 389 to 15 vote. The legislation would remove the per-country quotas on immigration work visas. The current quota system places a limit on the number of visas available to each country. For example, Iceland has a population of 320,000 and is allotted the same number of visas as China, which has a population of 1.3 billion people. The result is that foreign nationals of some countries can obtain U.S. permanent residency fairly quickly, yet foreign nationals from China and India face huge backlogs and must wait several years.

After the bill sailed through the House, it was stopped in the Senate by Republican Senator Chuck Grassley from Iowa. Grassley put a hold on the bill, blocking the legislation from being debated on the floor. Grassley said he would lift his hold on H.R. 3012 if Senator Chuck Schumer will stop pursuing the Irish-visa proposal. Chuck Schumer, Democrat Senator from New York and chairman of the Immigration Subcommittee of the Senate Judiciary Committee, wants to add another special visa category to the H.R. 3012 bill that would provide an immigration benefit for Irish Nationals.
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Myth.jpgThere are myths surrounding the H-1B nonimmigrant visa that may be fueling some of the anti-immigration sentiment of late. Some misconceptions are that H-1B workers work for low salaries, are not qualified, lack education, and/or are merely cheap labor from overseas to undercut and replace US workers. A released report has debunked these myths.

A January 2012 report by Magnun Lofstrom and Joseph Hayes at the Public Policy Institute of California, titled “‘H-1Bs: How do they stack up to US born workers?” has some interesting findings.
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Manufacturing.jpgManufacturing companies in the United States are frustrated with the shortage of skilled U.S. factory workers, and are seeking more skilled foreign nationals from abroad to fill these empty factory positions though H-1B visas. This is the result of a recent surge in demand for skilled factory workers including machinists, tool and die makers, computer controlled machine operators, architecture, and engineering. These jobs are essential to the manufacturing industry, and the number of available talented workers in these areas in the U.S. is dwindling.

Information technology companies employ the majority of H-1B visa workers, and manufacturers account for only 10% of H-1B visa petitions. But due to the increase in U.S. manufacturing, these numbers are increasing as more manufacturers rely on foreign workers to fill these positions through the H-1B program.
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Indian guy.jpgH-1B workers in the information technology field are better educated and earn more money than US workers in IT field, according to a new report by the Public Policy institute of California. However, the report is not without its critics.

The report found that the average wage income of an H-1B IT worker is 10 percent higher than that of a US worker. The report also shows that the average age of an H-1B IT worker is 30, while the average US IT worker is age 40. Less than 25 percent of US workers have a graduate degree, while nearly 50 percent of H-1B workers have a graduate degree.
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dreamstimefree_1249080.jpgThe rate at which US immigration authorities deny H-1B and L-1 nonimmigrant visas has increased within the last four years, and the rate is even higher to foreign nationals from India, according to a recent report released by the National Foundation for American Policy (NFAP). New data recently released from the US Citizenship and Immigration Services (USCIS) reveal that it has increased denials since 2008.

The data illustrate just how sharply the rate has jumped. In Fiscal Year 2008, L-1B denials were at 2.8 percent. That number rose to 22.5 percent in Fiscal Year 2009. In fact, there were more L-1B visa denials for Indian nationals in 2009 (1,640) than there were in the previous nine years combined (1,341).
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Foreign Workers.jpgThe 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.
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dreamstime_21176[1].JPGPresident 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.
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Jump.jpgThe 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.
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US Supreme Court.jpgWith 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.
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