Articles Posted in Nonimmigrant Visa

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.

compass.jpgUSCIS has issued guidance describing some situations where it is required to file an amended H-1B petition. This guidance follows a ruling out of its Administrative Appeals Office on a case that we covered several weeks ago: Matter of Simeio solutions. In a blog article, we went through USCIS’ investigation and the resulting conclusion: that certain liberties taken by Simeio led, perhaps unknowingly, to violations of the H-1B program. Though the company later gave effort to correct their errors and begin compliance, USCIS revoked the concerned aliens’ H-1B visas. It seems reasonable to conclude that the guidance is intended to prevent confusion that may have led to Simeio’s violations.

In the referenced case, USCIS and State Department investigators discovered discrepancies between information provided on petitions, obtained in consular interviews, and received from direct communication with Simeio employees. These discrepancies eventually led the investigators to find that some Simeio H-1B employees were working in locations not specified in their most recent petitions–and that this fact caused them to be paid less than was required. H-1B employees must be paid no lower than their assigned “prevailing wage,” and there may be a different prevailing wage for each class of occupation in each Metropolitan Statistical Area (MSA). The MSAs from which these H-1B employees were in fact working had higher prevailing wages for their occupations than the MSAs described on their most recent H-1B petitions. Because they were paid near or at their old MSA’s prevailing wages, their switches in worksite were not allowed without certain minimum increases in pay. However, the switches happened without sufficient increases.

The new guidance has been issued in part to prevent situations like above. It can be considered a reminder of current policy along with a clarification of USCIS’ interpretation of it. The logic of the guidance is as follows:

  1. Regulations already state that when an H-1B employee’s employment situation significantly or “materially” changes, his or her employer is required to submit an amended H-1B petition (or an altogether new petition if preferred).

rejected-865417-m.jpgMany companies are pushing to increase the annual cap on H-1B visas, but this effort has found opposition. Some say the program is riddled with fraud, while others oppose the program altogether. Perhaps because of this, USCIS goes to great lengths to enforce its regulations. A recent case reveals insights into how it does so.

The case, Matter of Simeio Solutions, involves an H-1B beneficiary who was ostensibly (according to the I-129 petition) hired to complete “in-house projects” for clients at the company’s home office in Long Beach, CA. The beneficiary would thus not be sent to other worksites and would only work under the petitioner. The Labor Condition Application (LCA) and included Prevailing Wage Determination (PWD) reflected this. However, if USCIS was convinced that these circumstances would not change, it wasn’t for very long.

The beneficiary began working for Simeio as an F-1 student during OPT (which is a short-term work authorization that alien college students can take advantage of after graduation). During this time, an H-1B petition was filed on behalf of the immigrant by this same company, which was approved. The beneficiary then went home to undergo a consular interview to receive the visa. As usual, the consular officers wanted to verify some things on the petition. It is not public information what the officer said in the interview, but it is known that as a result, the petitioner was made to submit some additional evidence.

jobz.jpgCongress is at an impasse on the question of how to fix our often dysfunction–and never ideal–immigration system. There has been debate, and bipartisan solutions have been put forth, but none of this has resulted in any actual reforms. The last time the immigration system was updated was 1990. Since then, the partisan divide–and political distrust–has been on an upward trend. As needed as it is, immigration reform seems to just be too great of a political risk for too little reward. Even comparatively small reforms, such as increasing the H-1B cap (which technically isn’t an immigration issue), cannot escape controversy any longer. We have argued in another article that the cap, which demand exceeds threefold, should be raised as soon as possible. However, others are beginning to make it known that they do not share this view.

Some of the biggest supporters of raising the cap are tech industry giants who say that doing so will increase their global competitiveness. At least a plurality of H-1Bs go into the IT field. Nonetheless, there has been an increasing prevalence in the tech community of the view that the current H-1B system harms American workers and is bad for the country. Several technology publications have claimed that the H-1B system’s built-in protections for the American worker are simply not working. They are referring to the Labor Certification process, the effect of which is to ensure that no H-1B worker is taking a job that Americans are actively seeking–or working for less than the “prevailing wage” for that job. (The prevailing wage can be thought of as the “going rate” or fair pay for the job, when all things are considered. The U.S. Department of Labor calculates this amount.) The issue is that H-1B workers are increasingly getting IT jobs, while the apparent threat of layoffs among American IT workers is also on the rise.

Technology publications, and recently conservative media, have pointed out that H-1B workers are in some instances replacing American staff, being paid less to do the same work. Critics believe that this is (or at least ought to count as) a violation of Labor Certification requirements. There are several problems with this view. To begin with, nothing in the regulations say that H-1Bs cannot replace American workers. There are only two (major) types of violation. The first is when there is an equally or better qualified candidate seeking a job that is instead given to an H-1B, and the second is when an H-1B works for less than the assigned prevailing wage.

compu.jpgTechnology companies have been pushing Congress to raise the cap on H-1B visas, which provide foreign nationals a three-year stay in the country to work in a specialty occupation. The unified industry support indicates that the major players think they can take advantage of the surge in talent that would accompany the additional visas. Unless these large companies are mistaken, this small reform would give American technology companies an edge over their overseas counterparts. Bipartisan support for this reform had been growing due to the fact that no one was challenging it, until now. Southern California Edison (SCE), a large utility provider in its region, recently laid off a significant amount of tech staff and instead brought in the tech solutions company Infosys for staffing. One of the laid off employees, J. Palmer, recently went before Congress to argue against raising the H-1B cap. Most of the Infosys employees that have been assigned to SCE are apparently H-1B workers.

Palmer argued that not only was SCE mistreating its loyal employees, the situation also constituted an abuse of the H-1B visa program. Specifically, he says tech companies are using it to get cheap labor, and in doing so, are displacing American workers. The program has minimum salary and qualification requirements to prevent a “race to the bottom” in American labor circumstances. Palmer says that these requirements, which are manifest in the H-1B Labor Certification process, are failing American workers–or at least the SCE employees that were laid off. The process’ immediate purpose is ensuring that the presence of H-1B workers doesn’t lower the average wage paid to Americans–or prevent equally-or-better qualified Americans from getting jobs (that H-1Bs are seeking). By making these claims, Palmer is implying that what happened at SCE goes against what the H-1B program is meant for–and is in general a bad thing for the country.

Being laid off is a sad situation, but it is a fact of life in a free market. SCE came to the opinion that its decision to use Infosys for IT staffing instead of retaining its current staff would allow it to cut costs, increase efficiency, or both. This will allow it to offer lower rates to its customers and/or return dividends to its investors. But, this is precisely the problem, according to Ron Hira, public policy professor at Howard University. “[T]he average [salary] for an H-1B employee at Infosys in FY13 was $70,882” but “the average [salary] of a Computer Systems Analyst in Rosemead, CA (where SCE is located), [was] $91,990 (according to the U.S. Department of Labor).” These numbers, along with the fact that Infosys doesn’t sponsor very many of its employees for permanent immigration, led Hira to conclude that “the H-1B workers Infosys [hires] are being used as temporary, cheaper, disposable labor, not as a way to permanently introduce talent and innovation into the American labor market.” The tech news site ComputerWorld calls this situation an “injustice.”

sv.jpgA recent case before a U.S. District Court illustrates the restrictiveness of USCIS regulations and its interpretation of statutes. Nonetheless, the judge reversed an H-1B denial, thereby validating as effective a few methods of supporting H-1B petitions. The judge in Washington State ordered USCIS to reverse its decision in denying an H-1B visa to a South Korean national wishing to work as a healthcare manager at an acupuncture and Eastern Medicine clinic in Lynwood, WA.

Upon review of the plaintiff’s petition, the agency denied it on two grounds: that the position did not qualify as an H-1B-worthy “specialty occupation”–and that the foreign national (FN) was not qualified for it, even if it were. Regardless of the evidence for or against this point, the core of this argument appears to trip over itself, because few occupations are both too general for H-1B workers while also excluding most working adults from qualifying. One would think that only one of these claims would be made. Either way, the court examined and rejected the government’s position on both of these counts.

It its denial of the petition, USCIS acknowledged that “most” of those who occupy the position of healthcare manager do have a bachelor’s degree, but some apparently don’t. Specifically, the agency held that a degree “isn’t a requirement to enter the field.” The response continued by saying that for those employers that do require a degree, it need not be in anything specific. USCIS seemed to be saying that a specialty occupation needs a special degree as a requirement for the job. The plaintiffs had argued that the job has special requirements that are fulfilled by the FN beneficiary’s credentials. USCIS instead decided that the job did not have those requirements and that the beneficiary did not have those credentials.

abscond.jpgA recent litigation regarding an H-1B visa audit, also known as a Labor Condition Application (LCA) Audit, raised a question that case law has not yet adequately addressed, even though the case isn’t unique. The case law in this area seems to muddle the facts without clearly addressing an employer’s obligation to pay the H-1B visa employee when he or she disappears and is never heard from. But prior to delving into the facts of our case, a review of the employer’s obligations is in order.

When does the Employer’s Obligation to Pay an H-1B Visa Employee Terminate?

The LCA obligates employers to pay H-1B employees an amount at least equal to the “prevailing wage” for their positions. (The Department of Labor (DOL) determines this wage.) There are two situations in which this obligation is known to be exempted. The first applies when an employer effectuates a bona fide termination of the employee. The second is when the employee experiences a period of nonproductive status due to conditions unrelated to the employment which take the employee from his or her duties (e.g. touring the U.S. or caring for an ill relative etc.) or render the nonimmigrant unable to work (e.g. maternity leave or an automobile accident etc.). The regulations, however, do not clearly address a situation in which the foreign national disappears.

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.

business-growth-3-1426748-m.jpgOnce again, Congress is considering a bill to raise the H-1B visa cap. The sponsors of this bill are three Democrats and three Republicans, the group of six being spread out across the ideological spectrum. (The primary sponsor is Orrin Hatch, who is the 29th most conservative of the 100-person chamber, and one of the co-sponsors is tied for fifth most liberal.) One would thus think that the bill has high hopes. However, if things go the way they have the last couple of times a cap raise was proposed, the bill will be shelved before any serious progress can be made. It seems that there is a general fear that allowing more H-1B workers into the country amounts to outsourcing or otherwise harms U.S. workers. However, a plain consideration of all the evidence should lead one to support raising the H-1B visa cap.

The first point to consider is that the current H-1B cap of 65,000 (with an additional 20,000 for workers with master’s degrees) is the same as the cap from the mid 90’s. In other words, it’s terribly outdated. The cap was first reached in 1997 and hit again in 1998. In response to this and increasing demand for IT workers, a law was passed to temporarily increase the cap to a height of 115,000 until returning to 65,000 in 2002. There were several reasons for instituting a temporary cap; one of those being the possible threat of Y2K related difficulties and outages, another being the experimental nature of Congress’ intent. However, the higher cap accompanied the .com bubble’s collapse and 9/11. Because of these and other issues, the political will and apparent need to import more specialized laborers was low at the end of the program, so the cap was not revisited.

H-1B visas are good for three years and one-time renewals are cap exempt, so the full effect of returning to the old cap wasn’t felt until 2008. It may be a “cheap shot” to say this, but the reduction of H-1B workers in the country seems to have coincided with the financial collapse and the recession rather than a boon for U.S. workers. But this needs to be said, because there is significant opposition to increasing the H-1B cap on economic grounds.

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In the years since 9/11, there have been ongoing efforts to improve U.S. security and make the visa processing system more efficient. Several government agencies have teamed up to create new all-encompassing databases–and have been engaging in a continuous review of immigration and visa issuing practices. Along with new requirements in the system, such as interviews and other security checks, these things have caused ever-increasing delays in visa processing and issuing. Though apparently unexpected, this result is not surprising. However, one issue in all of this stands out as having the potential to cause much unforeseen and bewildering difficulty: the Technology Alert List (TAL) and export control.

The TAL has historically been a way for the U.S. to keep track of technologies developed within its borders that could be (violently) used against it–and to prevent them from falling into the wrong hands. The current TAL is in fact two lists in one: one is the list of “state sponsors of terrorism,” and the other is the Critical Fields List (CFL). The CFL is an extensive set of fields of study and industry, each capable of producing what are known as “dual-use” technologies. The first use of a dual-use technology is for standard economic purposes, and the second is for war. The CFL consists of

Conventional Munitions;
Nuclear Technology;
Rocket Systems;
Chemical, Biotechnology and Biomedical Engineering;
Robotics;
Remote Sensing, Imaging and Reconnaissance;
Advanced Computer/Micro-Electronic Technology;
Materials Technology;
Information Security;
Laser and Directed Energy Systems Technology;
Sensors and Sensor Technology;
Marine Technology; and Urban Planning.

At this point, the reader may be wondering how this can cause issues with visa processing. Considered alone, the CFL’s connection to it is unclear. Export Control is the missing link in all of this. Products developed in the U.S., while sometimes not government property, always fall under its commerce authority. The government regulates them, and this regulation includes deciding whether foreign workers can come into its borders to work with these products.

When a foreign national (FN) starts the process of obtaining a non-immigrant visa at a U.S. Consulate or Embassy, the officers have the ability to check to see if the applicant’s U.S. employment plans involve anything that might be dual-use. This is because they have the duty to check for legal inadmissibility to the U.S., and grounds for inadmissibility include an FN’s attempting “to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information.” This clearly includes the CFL. So, if the FN’s plans in the United States involve something on the CFL, consular officers will undergo their procedure for when an FN is suspected of being inadmissible. This procedure is to create a Security Advisory Opinion (SAO).

In theory, this is only done when necessary. In practice, their policy is to always initiate an SAO unless the consular officers are 100% sure that the immigrant’s plans in the U.S. aren’t CFL related. If there is one created, the processing time for a temporary worker visa normally increases by at least 3-6 months, if the case isn’t outright denied. Further, when the delay is due to an SAO, there is almost no way to tell. The only thing one can do about this is to take steps to avoid an SAO in the first place.

The first step is to know whether a non-immigrant’s work in the U.S. could be construed as CFL related. A good way to evaluate this is to do the same thing as consular officers: just assume that it is (CFL related) unless there is a 100% chance that it is not. If it is, then the employer is advised to submit a report of technologies that the FN will be working with to the Department of Commerce, asking if they have dual-use purposes. (Not all things in the CFL are dual-use, after all.) Hopefully the answer is no, but if the answer is yes, options dwindle–but aren’t exhausted yet.

If an FN with a pending visa has a CFL dual-use issue, additional evidence may be required to swing the case in his or her favor. It is advised to gather as much detail as possible on what the FN will be doing and to find U.S. sources to back this up as industry standard. This information could be brought to a visa interview and/or be included in the petition. Also, it would be very helpful to show that the dual-use aspects of the technologies the FN will be working with are already public information or able to be found in an academic course. If this is possible, then it can be shown that giving the FN trouble over CFL issues won’t do the U.S. any good.