Immigration Visa Attorney Blog

The Wall Street Journal reported that a new study by Professor Jennifer Hunt of the University of McGill concluded that immigrant professional workers who came to the U.S. on visas such as H-1B, J-1 & F-1, outperformed its American peers in the areas of patenting and publishing books and papers. The H-1B visa is a specialty occupation visa for professionals and has recently come under fire with claims that it replaces American workers. Recent legislation restricts this type of visa for companies receiving Troubled Asset Relief Program (TARP) funding. The J-1 visa is an exchange visa program and is often used by universities to attract graduate level researchers and medical professionals. The F-1 visa is a student visa for foreign nationals to attend full course of study at U.S. colleges and universities.
The study deduced that businesses and institutions are able to draw the type of immigrants that surpass American born workers and end up earning more, by up to $5.00 per hour. While Professor Hunt concluded that "Foreign education commands a lower wage return," those that come in younger and attend U.S. colleges typically will have similar or higher earning potentials than American workers.

Mike Yates, acting Deputy Director of USCIS, addressed the emotional issue of the long delays in employment based green card processing in the Homeland Security Leadership Journal. He shared that in late 2007 and early 2008, employers filed 234,000 I-140 petitions and currently USCIS is dealing with 300,000 filed adjustment cases. He listed USCIS's measures in dealing with the backlog: increased emphasis on I-140 processing with a target processing time of 4 months to be reached by late 2009; issuing work authorization for a two year periods; and work with the State Department to ensure every available visa number is being used by shifting unused family based visas to employment based as occurred in 2007.
One of the concerns that continue to be expressed is the lack of accurate information on how long a case will take to get approval. Issuing a 2-year EAD is certainly a step in the right direction. I am not as certain that the other two factors listed are, per say, proactive steps to improve the backlog. For example, making sure every available visa is being used and shifting numbers from the family based to the employment based visa is simply required by law. With regard to reduction in processing time of I-140, it does not address the increase in denials of I-140 petitions. What good does reduction in I-140 processing time do if we are dealing with a record increase in erroneous I-140 denials? What most of us would like to see, among other things, is increased training and manpower to process applications expeditiously and correctly, and increased transparency and information sharing on processing time.

Construction & Design Co. v. USCIS: The Seventh Circuit Court of Appeals on 04/21/2009 affirmed the denial of an Immigrant Visa Petition based on finding of lack of financial ability. It also criticized USCIS for not being able to distinguish between "accounting entities" and "cash flow." Although this case is not a total victory for the arbitrary USCIS guidelines on determining financial ability in Labor Certification cases, it may be one of the early steps in a long road to change. The court explained that "because tax considerations drive a wedge between accounting income and economic income, a company's tax returns are not a reliable basis for determining whether the company can afford to hire another employee. "

In this case the employer, a small company, sought to hire a foreign national that it has long used as an independent contractor. The difficulty the Plaintiff has run into in this case is that it did not explain why it will be paying the beneficiary twice as much salary as an employee as it is it is paying him as an independent contractor. Further the Plaintiff did not explain how it will be coming up with additional funds. The court went on to suggest that forms of acceptable explanations that are better than using Tax returns or a net asset calculations would have been that they have landed new contracts, or they have raised capital, or evidence that the new employee will generate additional revenues that covers his salary. Another possible explanation the court listed as acceptable is that the beneficiary would be working longer hours thus generating more revenue for the company as an employee.

The court explained that profitable companies might have no taxable income for various tax related consideration and it does not follow that they are unable to add or pay for an employee.

In my prior blogs Part I & Part II on the same topic, we took on the H-1B RFE (Request For Evidence) question addressing different aspects of this growing area in immigration law and an escalating area of concern for many. In this blog, I will address the H-1B RFE when its inquiring, at least in part, about the beneficiary. The major issues typically inquired upon are:
• Length of time in H-1B or L-1 status
• H-1B recapture issues
• H-1B beyond six years
• Educational background of the beneficiary
• Status of the beneficiary

The above list is by no means exhaustive and one should be aware that there are other issues that can come up that typically require an experienced H-1B attorney to help address them.

Length of time in H-1B or L-1 Status: This is a reasonably straight forward issue but one that generally generates RFE's if it is not presented properly. The general rule is that the beneficiary can only get six years of total H-1B time. Time spent on L-1 visa will count towards the six year limit. Unless the total time on both statuses is clearly articulated with evidence in the petition, expect an RFE. If the beneficiary had an intervening other non-immigrant visa status, the time calculation should be clear on the intervening time. Off course the issue of who is subject to the H-1B numerical limitation cap and who is not, is relevant here but should be the subject of a separate future blog to be given appropriate treatment.

Continue reading "H-1B attorney on H-1B RFE's, Part III" »

Now that we have filed our H-1B visa petitions, we are awaiting the dreaded lengthy Requests for Evidence (RFE) from USCIS. We will enjoy a relative peace for a short time until the H-1B visa RFE's are mailed to us containing lengthy boilerplate inquiries and additional extensive document requests. Any employer or attorney who has filed more than a handful of H-1b visa petitions has seen these RFE's. One of my Columbus, Ohio clients complained to me that he finds the RFE's irritating not only because they are lengthy, but because they are intrusive and ask questions that are not relevant most of the time. For me they are irritating because they ask the same question from the same employer over and over. Going back few years the number of RFE's issued were substantially less. Now, we see them more often. My advice is to get organized. From my experience, the H-1B visa RFE's usually inquire about four broad categories.

1. Information pertaining to the employer.
2. Information pertaining to the employee
3. Information pertaining to the relationship between the employer and the employee
4. Information pertaining the job opportunity.

First of all, you should be aware that there is considerable overlap and interplay between the categories. For example if the RFE is requesting whether the job is a specialty occupation, you know the inquiry is related to the "job opportunity." But also be aware that the nature of the employment arrangement is also in question as well. In outsourcing situations, for example, evidence pertaining to the specialty occupation will not be satisfactory if it comes form the employer/petitioner. USCIS expects that such evidence to come form the end client where the employee will be located. Also matters related to the length of the assignment become relevant. Does the end client have work for the H-1B employee for the duration of the H-1b visa? This has to be addressed within the context of the specialty occupation inquiry.

We will address each of the four categories in more detail with examples in the upcoming blogs.

It is difficult not to join in on this debate...This month the administration would like to lunch the debate on Comprehensive Immigration Reform...Last month Congress enacted the Employ American Workers Act, (EAWA), which is part of the American Recovery and Reinvestment Act. Basically EAWA places restrictions on hiring H-1B workers by companies receiving funds from the Troubled Asset Relief Program (TARP). The debate, some say, which way are we heading?

Our history teaches us that restrictions on immigration have almost always accompanied our economic downturn. It is difficult to make a good faith argument advocating that there is a sound nexus between restrictions placed on the H-1B program on one hand and helping troubled companies recover on the other. Many express concern as to whether it is wise to place limitations on troubled companies from hiring the most talented to fill critical posts as they struggle to recover. As we begin debating the Comprehensive Immigration Reform, the bigger question, however, is whether EAWA is the beginning of a trend or simply an isolated legislation.

Continue reading "Comprehensive Immigration Reform or Protectionist Immigration Laws ?" »