Articles Posted in Employment Based

If you are interested in finding others in the immigration community and making professional connections, including potential H-1B employers and job-seekers, then please join the “USA immigration Jobs and Visas”group on LinkedIn.

In this group, members may post or browse through H-1B job listings on the group’s Bulletin Board. You may also post questions and participate in discussions on the Community Forum. Topics include employment-based and family-sponsored immigrant and non-immigrant visas, citizenship and naturalization, student visas, treaty investor visas, DACA, audits, litigation and appeals, and various other topics pertaining to immigration in the United States.

“USA Immigration Jobs and Visas” is hosted by Attorney Gus M. Shihab, President and CEO of the Law Firm of Shihab & Associates. Gus Shihab is the former Chapter Chair of the American Immigration Lawyers Association (AILA) in Ohio, and he has more than 22 years of experience representing corporations both large and small, as well as international investors in the employment and transfer of foreign talent before the U.S. Department of Labor and the U.S. Citizenship & Immigration Service. Mr. Shihab has been recognized by many independent organizations as a leading lawyer in the practice of immigration law. He was nominated for the Litigator’s Award in 2014 and is a life member of the Multi-Million Dollar Advocate’s Forum. Mr. Shihab is an AV rated lawyer, a professional recognition by peers, a designation given to only 5% of all lawyers in the United States.

Bipartisan legislatures in both Republican and Democratic-leaning states have recently enacted legislation that would advance state-based immigration reform. With the failure of both the Bush and Obama administrations to pass a comprehensive federal immigration reform package, states are now leading the charge to create their own individualized foreign guest-worker programs.With the approval of Congress, a federalist approach could further strengthen the economy by filling critical state-specific labor needs, while giving industrious foreign workers at all skill levels a chance to work legally in the United States, and eventually pursue a path to permanent residency or citizenship.

If you were to compare the state-based approach to our current federal approach for guest-workers, it would be like comparing a from-scratch, local-ingredient sourced meal prepared just to your specific tastes–with a warmed-up, from-the-freezer takeout meal from a national chain restaurant, where the limited menu is the same everywhere.

State-based immigration reform has so far been pursued by a growing number of states: Arizona, California, Colorado, Georgia, Kansas, Massachusetts, Oklahoma, Texas, and Utah. California, for example, would grant guest-worker visas for undocumented immigrants already living in California.Utah would also allow undocumented workers to stay, granting them the ability to apply for a two-year guest visa. Texas would not legalize any undocumented workers, but would allow for more legal migrant workers to enter from Mexico. A stronger Mexican economy in recent years–along with aggressive border enforcement–has led to a near 0% net increase in undocumented immigrants in the U.S.This has led to a critical shortage in many local industries such as construction, cleaning, landscaping, farming, fishing, restaurant, and service industries.

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In November, federal legislation was once again proposed that would drastically alter the process of employing H-1B and L-1 workers in the U.S.–increasing the burdens, costs, requirements, and penalties for employers–while effectively barring many small and mid-sized employers from hiring any of these highly-skilled and sought after foreign workers.

This new bill, the H-1B and L-1 Visa Reform Act of 2015, is not likely to pass, however it echoes previous attempts to alter these visa category requirements that would impair the ability of employers to hire the H-1B and L-1 visa employees they need.These controversial changes are included in a reform package that also includes a few welcome and promising developments for H-1B and L-1 employers, such as a doubling of the current H-1B visa cap and a transition to a demand-based system.Therefore, it is important to analyze and discuss in advance this proposed legislation and how the proposed changes might affect H-1B and L-1 visa employers if passed.

This proposed legislation, co-sponsored by U.S. Senators Chuck Grassley and Dick Durbin, is motivated by a misguided belief that non-immigrant visa holders displace American jobs and lower wages for domestic workers. As we have mentioned in previous blog entries, this is simply not supported by the research studies and the facts. Foreign workers in the H-1B and L-1 categories constitute some of the best and the brightest talent from around world, they increase our economic efficiency and growth, and they actually create new professional-level jobs for domestic workers.

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Foreign Workers Boost Our Economy

Each year, the U.S. turns away many thousands of highly-skilled and educated foreign workers, many of them with advanced degrees, because of an arbitrary visa cap set back in 1990. With demand far exceeding the limited supply of only 85,000 H-1B visas allowed per year, we are missing out on a valuable opportunity to recruit the best and the brightest minds from all over the world.

Time and time again, studies show that these foreign workers provide a tremendous boost to the U.S. economy, and that easing H-1B visa restrictions would send our economy into overdrive by filling key labor shortages and increasing economic efficiency and growth.

Contrary to popular misconceptions, foreign workers do not reduce wages or take jobs from American workers – in fact, they actually create jobs, raise wages, and boost the national economy.

U.S. Turns Away Tens of Thousands of Highly-skilled Foreign Workers Every Year In April of 2013, the United States Citizenship and Immigration Services (USCIS) halted the H-1B filing process only four days after accepting over 124,000 petitions, because the yearly 85,000 H-1B visa cap had already been met. That means that for 2014, we turned away over 39,000 highly-skilled workers based on a random lottery, in addition to the many thousands who never even had a chance to apply because the cap was met so soon. It’s much the same every year with our current overly-restrictive policy on H-1B visas.

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The American Dream is under fire after a government decision to backtrack on its promise to thousands of skilled immigrants, but justice may be coming in the form of a class-action lawsuit.
Following an initial publishing of the October Visa Bulletin (OVB) from the U.S. State Department (DOS) on September 9, 2015, it seemed that those who had previously been relegated to back-logged visa waitlists would have the opportunity to apply for permanent residency and green-card status. This policy optimization was rendered moot just days later after the DOS issued a revision that severely limited the number of immigrants eligible to apply for work visas under the new policies As a result, and as anticipated by most involved, a class-action lawsuit has been lodged against the DOS, U.S. Citizenship and Immigration Services (USCIS), Secretary of State John F. Kerry, and several other government defendants by those afflicted by the policy change.
The Lead Class Representative on the complaint is Chintan Mehta, an IT professional in Bothell, WA, spent thousands of dollars on attorney fees and medical examinations in preparation for his application only to be spurned by the revision. He and his co-plaintiffs represent thousands, of primarily of Indian and Chinese engineers, scientists, and many other skilled professionals that have had their lives and futures of their families put on hold due to a callous and unexplained renege by the US government. To-date, the DOS, USCIS, and the others involved have yet to come forward take responsibility for their actions.
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gavel-952313-m.jpgEach month, the State Department releases the Visa Bulletin, which is how it announces who is eligible to apply for permanent residence. More precisely, it answers the question of “who has waited long enough for it?” This involves a very complex process, so we recently did our best to explain it in [two publications]. Regulations from the most recent comprehensive immigration act (which took effect in the early 1990’s) stipulate several immigration categories and a per country cap (among many other things). State’s method of compliance with these regulations is the determining factor for who gets visas, but the District of Columbia Circuit Court of Appeals has found that the Department may be going, perhaps illegally, much farther than law dictates.

Chinese EB-3 immigrant Meina Xie has been waiting for the State Department to give the go-ahead on her petition for permanent residence for over eight years. There is some evidence that this kind of delay cannot be helped. First and foremost, no more than 7% of any year’s annual visas can go to immigrants of one particular country. Being that she is from the world’s most populous country–and is petitioning in a lower preference category, delays were likely inevitable. Although the decision recognizes this, it finds also that State may be abusing its authority in the degree of subjectivity with which it distributes visas.

At the heart of Xie’s case is a statute that State is apparently ignoring: § 203(e)(1) of the Immigration and Naturalization Act of 1990. It says “[permanent residence] shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed.” Believing that citing this statute in court could finally end her waiting period, Xie sued. The judge in the original case sided with State, however, who argued that Xie’s complaint failed to identify a specific and discrete instance of its ignoring a legal responsibility. The appeals court disagreed, finding that asking for application of 203(e)(1) was sufficient grounds for a suit because State failed to show adequately that it was in fact following it.

buildingsite-1132003-m.jpgEB-5 is an immigration option for those with the resources to invest in U.S. job creation. It allows an immigrant to be eligible for permanent residence if he or she invests at least $1,000,000 in the U.S.–and with it creates at least ten jobs. (The monetary requirement is half if the investment is made in a designated “Target Employment Area,” which is either rural or suffering from an unemployment rate at least 50% higher than the national average.) There are two ways to do this: by going it alone with individual or “Direct” investment, or by using a Regional Center. We have said before that those who wish to immigrate in order to invest should use direct investment, while those who want to invest in order to immigrate should consider using a Regional Center. Both sides have their advantages, but the Regional Center option is viewed as a safer bet–with greater support from others–than the alternative.

A Regional Center is a government approved economic entity that takes in foreign investment and outputs domestic job creation. In contrast with EB-5 Direct, Regional Center immigrant investors do not need to be more than minimally involved in managing the investment. Most Centers boast several apparently effective schemes for protecting and returning investor money, each with varying levels of risk/potential reward. However, it is not possible for an immigrant investor to avoid risk altogether. (The government requires that the money be at risk for green card eligibility.)

Another key attraction of the Regional Center program, as opposed to EB-5 Direct, is its more inclusive definition of job creation. Under EB-5 Direct, all ten required jobs must manifest themselves as actual employees of the company or enterprise being invested in by the immigrant. These are called direct jobs. However, for Regional Center investors, “indirect” jobs may also be counted.

magnifying-glass-967211-m.jpgLCA Compliance

Something that all H-1B and EB-2/EB-3 immigrant sponsors must keep track of is compliance with labor condition application (LCA) regulations. The labor certification process is designed to protect U.S. workers in two ways. It makes sure that aliens aren’t taking jobs that qualified U.S. workers are seeking and aren’t working for less than the usual or “prevailing” wage in their position. In simple terms, U.S. immigration policy tries to give employers no economic incentive to hire foreign workers (except for qualifications and desire for the position). LCA enforcement is how this is accomplished, and the Wage and Hour Division of the Labor Department (WHD) will initiate investigations if it suspects any lapse in LCA compliance. Penalties for violations are mostly monetary–but may include the loss of a company’s ability to hire foreign workers.

The plight of delinquent companies that knowingly violate LCA regulations isn’t the focus here. There are many companies that apparently didn’t know that they were in violation–and went on to contest their violations. (In fact, the only time the public hears about the details of one of these cases is if a violation is contested and the case goes to hearing.) Here are some common LCA issues employers sometimes stumble into.

  1. Employers can get in trouble for deferring paying labor-certified employees–as may happen during a contractual disagreement, even with full back-payment coming as soon as an agreement is reached. The WHD is all too eager to view things like this is as employers giving themselves more leeway with alien workers (than with U.S. ones). The payment arrangements detailed in the approved petition should be followed. If this isn’t possible, any deferred payment should come with interest, at the very least.

snapshot3.pngWhen a foreign national (FN) begins the immigration process, his or her case will be assigned what is called a priority date. This date is generally the calendar day Citizenship and Immigration Services received the original immigration petition–and represents the FN’s place in his or her line. In both case types, employment-based (EB) and family-sponsored (F), there are several legal avenues or methods an FN can use in an immigration petition. These legal avenues are formally known as “preference categories.”

For the purpose of this explanation, it will be productive to say that in each of these categories, there are five “pathways” to receiving permanent residence (or “a green card”). The pathway used is determined by the nationality of the FN, and there is one for each of the four oversubscribed nationalities of India, China, Mexico, and the Philippines. The last one is for all other nationalities. If a nationality is oversubscribed, it is bumping against the annual universal per-country limit.

The metaphor of five pathways in each preference category (of both case types) is useful because it allows the further metaphor of “lines.” Some pathways aren’t used very often, so they don’t have lines to get through them, but popular pathways do. Thus, how long an FN must wait in line to use a preference category (to get a green card) depends on his or her national pathway. Each preference category has its own annual limit as well, so if an FN’s petition falls into a category that isn’t at its limit–and he or she isn’t of an oversubscribed nationality–the only waiting time will be how long it takes the government to consider the case. There would be no line in the pathway.

snapshot3.pngImmigration to the United States is a complex and lengthy process (for most). Sometimes, when this topic is discussed, a “line” to receive a green card is spoken of. Though simplistic, this characterization is not incorrect. The fates of most immigration cases are tied to the Visa Bulletin, which represents the closest thing to the idea of the immigration line. The Bulletin is a monthly publication of the U.S. State Department (DOS), and shortly after it is released, we publish an analysis of it at www.shihabimmigrationfirm.com/visa-bulletin.html. It is the result of several government agencies’ efforts to reconcile immigration demand with relevant laws and regulations. The way the Bulletin works is confusing for many (to say the least), and its results have made life a little more difficult for most that seek to live in the United States. It is our hope that these two articles will clear up some questions about how the Visa Bulletin works–and why waiting times are as long as they are.

Law dictates that 366,000 foreign nationals may receive permanent residence, otherwise referred to as receiving a green card, each year. This cap does not apply to those claiming an “immediate relative” relationship to a U.S. citizen or other uncapped exemption. The limit is split into 226,000 for family-sponsored (F) cases and 140,000 for employment-based (EB) ones. These limits are divided further based on the legal avenue one wishes to use in obtaining permanent residence. These legal avenues are numbered and called “preference categories,” with “first preference,” etc. Each preference category has its own limit, and when a lower numbered category (which denotes higher “preference”) doesn’t use all of its assigned green cards, the remaining ones fall to the next category. (If the bottom category doesn’t use all its green cards, they are offered to the first category, and so on.) On top of this, no more than 7% of them can be given to immigrants from any one country.

The implications of the 7% limit are subtle, but when one considers that two countries (India and China) together contain over a third of the world’s population, its effect is clear. People from those countries aren’t going to have smooth sailing in U.S. immigration. There are four nationalities of immigrant consistently up against this limit (or are considered “oversubscribed”): China, India, Mexico, and the Philippines. Some immigrants from those countries have been waiting over 20 years for permanent residence, though one shouldn’t think that there’s a pre-ordained waiting period for these people. How long an immigrant waits pertains only, almost always, to how many other immigrants are attempting to obtain permanent residence from their home country–and how many are using the same preference category.