Immigration Visa Attorney Blog

Dear President-Elect Obama,

We hope you had a Merry Christmas. As immigration lawyers and immigration attorneys we would like to extend our season's greetings to you and your family. We know you had a great year in 2008 and you earned it. But many Americans had a jobless Christmas this year. From the nation capital, Washington, DC, to the heartland of Cleveland and Columbus, Ohio to the motor city, Detroit, Michigan we know that Job creation will be your biggest challenge. So let me explain why the H-1B visa cap increase has no negative effect on US Job creation.

Job Creation

One major concern of opponents of an increase in H-1B visas is that holders of these visas are taking jobs away from U.S. workers. However, this argument is based on a misconception of the process involved in issuing H-1B visas and the reasons why an increase is needed. H-1Bs are issued to holders of a bachelor or higher degree in specialty occupations where there are no available U.S. workers. In general, companies that hire H-1B temporary workers do so in order to grow, not to replace U.S. workers. Those companies are creating jobs.

There are checks against using the H-1B program to displace U.S. workers. The H-1B application process involves filing a Labor Condition Application (LCA) with the Department of Labor in which the employer certifies that the wages to be paid to the temporary worker will equal or exceed the prevailing average for the occupation, and that the working conditions will not have an adverse effect on similarly situated U.S. workers, among other things. Also the H-1B program requires companies to confirm that the H-1B workers are not replacing American workers. If some companies are slipping through the cracks and using the H-1B program to take jobs from U.S. workers, that would be a reason for procedural reform, and not a reason to make fewer H-1Bs available.

Continue reading "The H-1B Visa Cap Should be Increased, An Open Message to President-Elect Obama, Part Two" »

Dear President-Elect Obama,

As you take office, the many problems this country is facing are probably dominating every second of your day. It may seem, given our present economic situation, and the need to focus resources on other pressing issues and long legislative agenda in Washington, DC. that immigration reform should take the back seat for now. However, some aspects of immigration reform, such as an increase in the annual H-1B cap, would actually contribute to, and not hurt, an attempt to remedy the economy. Many Cities like Detroit, Michigan, Cleveland, Ohio and Columbus, Ohio to name a few can certainly benefit from a pro H-1B policy.

The purpose of this message is to outline the reasons why the H-1B cap should be increased and to address the concerns of opponents to an increase to the H-1B cap.

The H-1B visa, or at least the concept behind it, is a historically important part of our country's immigration law. This visa has been a driving force for innovation and a vehicle by which to attract the top talent and skills from across the globe. The H-1B visa allows foreign nationals with a Bachelor's or more advanced degree (or the equivalent of those degrees through experience) to work temporarily in the United

Continue reading "The H-1B Cap Should be Increased. An Open Message to President-Elect Barack Obama, Part One" »

Dear President-Elect Obama,

As you take office, the many problems this country is facing are probably dominating every second of your day. It may seem, given our present economic situation, and the need to focus resources on other pressing issues and long legislative agenda in Washington, DC. that immigration reform should take the back seat for now. However, some aspects of immigration reform, such as an increase in the annual H-1B cap, would actually contribute to, and not hurt, an attempt to remedy the economy. Many Cities like Detroit, Michigan, Cleveland, Ohio and Columbus, Ohio to name a few can certainly benefit from a pro H-1B policy.

The purpose of this message is to outline the reasons why the H-1B cap should be increased and to address the concerns of opponents to an increase to the H-1B cap.

The H-1B visa, or at least the concept behind it, is a historically important part of our country's immigration law. This visa has been a driving force for innovation and a vehicle by which to attract the top talent and skills from across the globe. The H-1B visa allows foreign nationals with a Bachelor's or more advanced degree (or the equivalent of those degrees through experience) to work temporarily in the United

Continue reading "The H-1B Cap Should be Increased. An Open Message to President-Elect Barack Obama, Part One" »

As the H-1b filing deadline approaches, a frequent question I get is what the definition of Specialty occupation is. A typical question is: I have open positions in Columbus and Cleveland, Ohio, they will assist an engineer, is an Assistant Engineer job a "specialty occupation? and can we file an H-1b visa petition for this person ?"

Nothing is more elusive than what is actually meant by that term. Some occupations, such as professors, accountants, or engineers, fall easily into the meaning of specialty occupation, but others are not so clear. For such occupations, many factors must be considered in determining whether specialty occupation work is involved.

"Specialty occupation," as defined by the Immigration and Nationality Act, means an occupation that requires "a theoretical and practical application of a body of highly specialized knowledge," and that the "attainment of a bachelor's degree or higher" is usually a prerequisite to entry into the profession. It is not always clear that a particular position meets these two requirements. However, federal regulations give further guidance.

An employer can show that a given occupation is in fact a specialty occupation by showing one of the following:

(1) a bachelor degree or its equivalent is normally the minimum requirement for entry into the particular position;

This is per se evidence that the position requires "a theoretical and practical application of a body of highly specialized knowledge."

(2) such a degree is commonly required in the industry in similar positions and in similar organizations, or the position in question is so complex or unique that it can be performed only by an individual with a degree;

The employer can search job-posting websites and provide copies of advertisements for similar positions in other organizations requiring a bachelor's degree.

(3) the employer normally requires a degree or its equivalent for the position; or

The employer can provide past advertisements for the position or similar positions, and evidence that current employees in those positions meet the degree requirements.

(4) the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

A good resource to consult when considering the nature of the duties of a given position, as well as whether a bachelor's degree is the normal minimum requirement for entry into the position, is the Occupational Outlook Handbook (OOH). The book is compiled by the U.S. Bureau of Labor Statistics and is considered authoritative for H-1B purposes; it is revised every two years.

Employers should note that a position will not necessarily be held to be a specialty occupation merely because the position's title is one of an established specialty occupation or because the employer shows that it always requires a bachelor's degree for the position. A description of the duties related to the position must be submitted with the evidence and the reviewing immigration officer will probably find the corresponding occupation in the OOH, without regard to the title.