Articles Posted in Work Visas

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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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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Mayor John Cranley cited several new initiatives he expects Cincinnati to take in making the South-west Ohio city the “most immigrant friendly city in the United States.” Cranley hopes to oversee an immigration Task Force, which Cranley started in 2014, to help create international attraction.

Among the initiatives the Task Force looks to bring forward are creating a center for new Cincinnatians that helps connect immigrants to services and other residents, launching a training program to help companies recruit international job candidates, providing immigrants with financial literacy training to help them navigate money management and home buying and marketing Cincinnati as an ideal location for manufacturing.

Another angle the Task Force looks to take is training police officers in cultural sensitivity, which could have something to do with the recent happenings in Cincinnati involving violence among the police force. Cincinnati is trying very hard to re-brand the local police force.

Given that the primary goals are creating jobs and spurring local growth, Cranley could be looking to primarily attract immigrants in the EB-5 program; where entrepreneurs and investors from overseas will come to the United States to invest in a commercial enterprise to help create jobs. The process is mutually beneficial to the Targeted Employment Area and immigrant alike, as the immigrant looks to attain Green Card Status through the program. There is also a Regional Center located in Cincinnati. Cranley may see that is the greatest opportunity fund several projects around the growing city.

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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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visas.bmpThe H-1B visa program is very successful. Since its launch in 1990, it rose in usage until hitting its statutory cap of 65,000 new temporary workers annually seven years later. At the time, it was raised temporarily to accommodate the tech boom, but this higher cap was allowed to expire. Since 2003, it has sat at the original 65,000 with an additional 20,000 set aside for those with master’s degrees.

Congress may raise the cap as part of a comprehensive immigration reform bill, but this does not appear likely to occur for at least another few years. Despite the increased chance of failure due to being capped out, the amount of H-1B petitions received by the government continues to rise each year. It has thus become necessary to seek alternatives. Many employers will likely be unable to take advantage of these alternatives, but it is worth investigating.

Most of these visas are in some way superior to the H-1B (in that those eligible for both would likely be wiser to opt for the alternative). Unsurprisingly though, qualifying is a significant hurdle. But it is likely true that several employers who desire to use the H-1B program could just easily enough convert their foreign hiring for it to make sense to use one of these alternatives.

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.

3d-maze-4-1145534-m.jpgLast month we discussed alternatives to the H-1B visa. One very important reason to consider all options for potential employees revolves around the uncertainties of the H-1B cap process, discussed below.

As the H-1B cap season for FY 2016 approaches, employers and potential employees alike must be prepared. For the uninitiated, the H-1B cap refers to the statutory limit placed on visa’s available for temporary workers in specialty occupations. Currently, this limit is set at 65,000, with an additional 20,000 reserved for those with advanced degrees (also known as the Master’s cap). As more and more employers seek to benefit from highly skilled workers available internationally, particularly in the IT industry, the H-1B visa becomes more highly sought after. Additionally, the ability to extend the H-1B status past the standard six years with the approval of an employment based immigrant petition adds exceptional benefit to both petitioner and beneficiary.

USCIS begins accepting cap-subject H-1B petitions on April 1. In the past two years, the Service has received enough petitions to fill the numerical cap within 5 days. Thankfully, due to this massive influx of potential visa beneficiaries, a lottery system has been implemented. So long as USCIS receives the cap-subject petition within 10 days of the start of the filing period, it will be placed in a random lottery for selection. Those petitions eligible for adjudication under the 20,000 Master’s cap will be selected first. Those that qualify for the Master’s cap but were not selected are placed with all other petitions for possible selection in the 65,000 general cap. With over 172,000 petitions received by USCIS for the H-1B cap last year, there is only about a 1 in 3 chance of any petition being accepted for filing. All petitions that are not selected in this process are rejected and all documents and filing fees returned. Those not selected may have alternative visas available to them, though many will have to wait and resubmit a new petition the following year in the hopes of being selected in the lottery.

chasing-the-markets-182457-m.jpgIn October 2011, the US Citizenship & Immigration Service began a new initiative called the “Entrepreneur in Residence” (EIR) program and launched a new interactive website a year later called “Entrepreneur Pathways,” intending to emphasize a new USCIS horizon in the usage of various visa types to welcome foreign investors to the United States. One of the visa categories listed in the new website is the intracompany transferee (L-1) visa.

The USCIS announced its intentions to work with the investor community and to become more pragmatic in the manner the agency reviews and adjudicates visa petitions and applications filed by international investors wishing to establish new businesses in the United States. The investor community and their immigration attorneys hailed the program as a step in the right direction to utilize various visa categories including the B-1 visitor’s visa, for example, and other unconventional visa categories as means to widen the visa path for international entrepreneurs to invest in the US.

Even after the introduction of the EIR initiative, the USCIS remains very cautious in the manner it reviews intracompany L-1 visa petitions. One can argue that the EIR did little to improve the adjudication personality of the USCIS when it comes to intracompany L-1 visa transfers. When planning to file an L-1 visa petition for a new or existing office, it is critical to work with competent immigration counsel specifically with experience in submitting intracompany L-1 visa petitions.