Articles Posted in Healthcare Professionals

watching-time-860275-m-300x225For many years, the H-1B visa has provided a unique opportunity for foreign specialized workers to join the U.S. workforce. The visa was initially designed to supply American companies with foreign workers to offset shortages in the U.S. labor market. However, after a tumultuous presidential election, increased attention is now being placed on U.S. immigration policy and the H-1B visa is now under intense scrutiny from both sides of the political aisle. Legislation is now being introduced in the U.S. Congress that is bound to dramatically change the rules for H-1B visa holders. It is critical for foreign workers and their employers to understand the potential ramifications of these changes and to act fast.

Criticism of the H-1B visa has typically taken two forms. First, there are those who criticize the H-1B visa because they claim that it has been widely abused. The initial purpose of the visa was to help U.S. companies fill shortages in the labor market, but some companies have abused the visa in an attempt to outsource American jobs to less expensive foreign workers. These critics of the current visa rules have attempted to close loopholes that would otherwise incentivize companies to seek foreign labor in place of existing American labor. Second, there are those who broadly criticize the H-1B visa by suggesting that the program inherently harms the U.S. workforce. This second criticism of the H-1B visa is now gaining traction among both Democrats and Republicans. New guidelines for the H-1B visa are being proposed in both houses of Congress that could radically overhaul the program.

In the House, Rep. Darrell Issa (D) has introduced “The Protect and Grow America Jobs Act.” Issa claims that the legislation aims to “ensure that our valuable high-skilled immigration spots are used by companies when the positions cannot be filled by the existing workforce.” Issa’s bill would increase the salary requirement for an H-1B visa from $60,000 to $100,000. The purpose of this change, he claims, is to prevent companies from outsourcing American jobs to foreign workers. Issa represents a district of California that has unfortunately seen a lot of H-1B abuse by large corporations. But some critics in the House claim that Issa’s bill does not go far enough.

India Flag.jpgIt is readily apparent that in the few weeks leading up the presidential election, neither President Obama, nor former Governor Romney are willing to commit themselves to any firm and unequivocal stance on employment based, legal, immigration. This reluctance to take a stand further frustrates the thousands of Indian nationals and their employers who have undertaken the emotional, financial and time investment of who have placed themselves at the mercy of the USCIS, US Department of Labor and US Department of State though use of the current employment based preference system. However, while explicit pledges will not be forthcoming from either the current or the potential future president until the elections have passed, their subordinates continue to make the true stance of the candidates known through their actions and interactions with foreign dignitaries. Recent comments from Timothy Geithner, secretary of the treasury (and fifth in the line of succession to the president) to his counterpart in the cabinet of India are indicative of this phenomenon.

Indications of Future Executive Policy toward PERM and H-1B Visas for Indian Nationals.
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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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dreamstime_xs_17719911.jpgUS 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.”
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US Immigration emblem.jpgThe Department of State has issued its Visa Bulletin for December 2011. The new bulletin shows a five month jump in the priority date cutoff in the EB-2 category for foreign nationals born in India and China. Persons in this category with a priority date of March 15, 2008 or earlier are now eligible for immigrant visas. Because of the five month jump, some people in the EB-2 category are now current who may not have been expecting it. Others may be unaware completely. Persons with pending or approved I-140s in the EB-2 category should double check their priority dates and contact the Law Firm of Shihab and Associates with any questions about their current eligibility for lawful permanent residency.

Unfortunately, the EB-3 category for China and India born foreign nationals only advanced one month from the current priority dates in the November 2011 Visa Bulletin. The EB-3 category remains stagnant, with the backlog for Indian born persons now over nine years. Some people with labor certifications qualifying them for EB-3 classification may now have the requisite years of experience or an advanced degree allowing them to now pursue an EB-2 classification. Persons interested a possible “EB-2 upgrade” should contact the Law Firm of Shihab and Associates for a consultation to see if they qualify.

Bad News.jpgOn 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.
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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.

2012 H-1B Visa Usage Update1.jpg

This graph illustrates visa usage for federal fiscal year (FFY) 2012 which began on October 1, 2011. The US Citizenship & Immigration Services began accepting applications for FFY 2012 on April 1, 2011.

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dreamstime_11032411[1].JPGJust about when the pre PERM filing prevailing wage determination processing times improved, we began noticing significant delays recently. As a way of background, employers wishing to sponsor a foreign national for an employment based permanent residence application in either the EB-2 or EB-3 categories regulations require such employers to make a formal prevailing wage determination request. Based on the news coming out of the US Department of Labor, such employers must now wait.


Background

Prior to January of 2010, all prevailing wage requests were determined by the State Workforce Agency (“SWA”). In some cases, SAWs were completely unreasonable in their computation methodologies and were quite arbitrary. Ohio for instance was one of the worst states in their computation methodologies. The Ohio Department of Jobs & Family Services located in Columbus, Ohio was the agency historically commissioned with the task of determining prevailing wages for all pre PERM filing application processes.
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H-1B Visa Cap FY2011A.jpgIf 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.
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Paper Pile.jpgAs the Democrats and Republicans of congress continue to negotiate a compromise to the federal budget that is set to expire Friday, April 6th, 2011 at midnight, immigration attorneys in Columbus, Ohio have turned their attention to how a government shutdown will affect the normal adjudication of visas. Visa applications, including employment based I-140 and H-1B petitions as well as family based petitions including I-130 and I-485 applications, filed in the United States are usually adjudicated at one of the USCIS service centers throughout the country. These service centers are staffed by immigration officers who adjudicate visa applications. These immigration officers are employees of the federal government and could be furloughed if the federal government shuts down for lack of congressional funding.

Historically, government shutdowns have resulted in delays for visa adjudication. The reason for the potential delay is based upon the wording of the federal Antideficiency Act. This law states that in the event of a governmental shutdown the only governmental employees that will be permitted to continue to carry out their work will be employees who prevent or respond to “emergencies involving the safety of human life or the protection of property.” The law goes on to state that “ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property” are not to continue their operations during a shutdown. Officers who adjudicate visas at the service centers will most likely not be deemed essential to the protection of safety or property and will be furloughed. With no-one to adjudicate visas, visa applications will be backlogged to some extent. However, other aspects of United States immigration policy will continue to be enforced. Customs and border patrol officials, for example, should remain active.
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