Immigration Visa Attorney Blog

Our firm has recently learned that, in light of the Neufeld H-1B Memorandum, certain ports of entry are more vigilantly checking the Labor Condition Applications (LCA) of H-1B visa holders. Immigration officers are reviewing the LCAs of H-1B visa holders to confirm the end client work location matches the work location indicated on the LCA. If the end client work location does not match the information on the LCA, immigration officers are finding H-1B visa holders inadmissible. While this procedure may not seem atypical or unjust, it has come to our attention that Customs and Border Protection (CBP) is using LCA inspections as a means of testing the validity of the H-1B employer-employee relationship.

CBP's newly found emphasis on verifying the validity of the employer-employee relationship is undeniably based on the controversial Neufeld H-1B Memorandum on the H-1B Employer-Employee Relationship. In addition to memorandum's conflicting guidance regarding the standard of employer control, the Neufeld H-1B Memorandum has received harsh criticism for unilaterally implementing new immigration laws without following the proper rule-making procedures. In response to these concerns, the United States Customs and Border Protection (CBP) vaguely suggested that it would "take it under advisement." However, the practices is in place at certain ports of entry indicate that the USCIS's controversial memo is finding its way to CBP's screening process as an enforcement tool at certain locations.

By way of example, an H-1B visa holder recently traveled to India and returned through the Newark International Airport in New Jersey. Upon his return from India, the foreign national was going to be working as an IT consultant at a client site in Redmond, Washington. Though an amended LCA was filed with the proper work location, the foreign national did not have a copy of the new LCA. At the inspection point, the foreign national was asked by the CBP officer to produce his current LCA. The H-1B visa holder only had a copy of his previous LCA, which indicated his work locations were Texas and Georgia. The CBP officer informed the H-1B visa holder that his LCA did not demonstrate the proper H-1B relationship with his employer. The CBP officer then stated he should withdraw his H-1B extension application, go back to India and reapply. Even though the foreign national's work location was properly documented in an amended LCA, he was deemed inadmissible for not being able to produce the new LCA at the port of entry.

Despite the controversial nature of the Neufeld H-1B Memorandum, DHS appears to be enforcing the the policies promulgated therein. Unfortunately, until the Neufeld H-1B Memorandum is retracted, H-1B visa holders are required to abide by its contents. To avoid any issues at the border, all H-1B visa holders should be advised to not only file a new LCA for any change in end client work location, but also promptly amend their H-1B petition accordingly. And above all, the H-1B visa holder should be sure to carry documentation that accurately reflects their current employment situation, including copies of their the most recent LCA and H-1B petition with up-to-date work location information.

The United States Citizenship and Immigration Services (USCIS) issues 65,000 new H-1B visas annually for individuals with a Bachelor's degree or higher who will be working in a specialty occupation. In addition, the USCIS issues 20,000 H-1B visas to individuals with a Master's degree or higher under the advanced degree exemption every year. The H-1B fiscal year begins on October 1st, but the USCIS begins accepting petitions for the new fiscal year on April 1st. The USCIS will continue to accept petitions until the annual limitation on H-1B visas has been reached. Once the yearly cap has been fulfilled, H-1B hopefuls must wait until the next H-1B fiscal year to apply for an H-1B visa.

The time frame in which the H-1B cap is reached has varied from year to year. For instance, for Fiscal Year 2005, reverted to 65,000 limit, it was not filled until October 1, 2004. For Fiscal Years 2006 and 2007 it, likewise, took the cap a few months to be exhausted. Beginning in Fiscal Year 2008, though, the USCIS was flooded with H-1B petitions on April 1st, enough to exhaust the entire fiscal year cap by April 2, 2007. At that point, the USCIS instituted a lottery just to determine which of the hundreds of thousands of H-1B petitions received would be processed. This trend continued into Fiscal Year 2009, as well. Unlike the previous two years, however, the Fiscal Year 2010 cap remained open until December 21, 2009. At that time, it was becoming clear that the downturn in the U.S. economy was slowing the demand for new H-1B workers.

Unfortunately, the Fiscal Year 2011 demand for H-1B visas does not seem to have increased any from Fiscal Year 2010 and may, in fact, be lower. As of May 14, 2010, the USCIS had received only 19,000 cap-subject H-1B petitions and 8,100 cap-exempt H-1B petitions. This is far fewer petitions than had been received by this time last year. In comparison, the USCIS had received 45,000 cap-subject petitions and 20,000 cap-exempt petitions by May 18, 2009. It appears that much like the Fiscal Year 2010 H-1B visa cap, the Fiscal Year 2011 H-1B visa cap will take many months to reach. It is even possible that, for the first time since the mid 1990's, the H-1B, it will not be completely filled before the next H-1B fiscal year begins. However some trend analysts still predict that the H-1b cap will be reached this year around November. Only time will tell when.

In light of the immigration law recently passed in Arizona, similar legislation has been proposed in other states and, unfortunately, Michigan will be no exception. House Representative Kim Meltzer announced on May 7, 2010 that she is in the process of drafting and will be introducing an immigration bill modeled after the Arizona law in the Michigan Legislature. Though the actual bill has not yet been introduced, Representative Meltzer has been speaking publicly about the contents of the fledgling bill.

In particular, the proposed bill would give Michigan law enforcement the authority to inquire about an individual's immigration status if they have been stopped for any lawful reason. The stopped individual can be questioned about and required to prove their lawful status on the spot. Any individual that cannot prove their lawful status risks being arrested. Interestingly, according to Representative Meltzer, a Michigan Driver's License would be acceptable proof of lawful status. This begs the question, will the inability to produce a Michigan Driver's License lead to the presumption that an individual is not lawfully in the United States?

Representative Meltzer has stated the bill would prevent law enforcement from solely considering race, color or national origin when questioning an individual about their immigration status. The exact language of the bill remains to be seen, but based on Representative Meltzer's comments race, color and national origin can be a consideration, just not the only consideration. If the bill is in fact drafted in such a fashion, it would essentially be giving law enforcement the ability to discriminate and racially profile. Regardless of the reasons, discriminatory conduct and racial profiling should never be tolerated, let alone legalized by the Legislature.

There are several immigration-related bills that have been introduced in the Michigan Legislature not patterned after the Arizona law, including one which was just passed into law. The new law requires employers that are servicing public contracts to verify the legal status of their workers. The new law also prevents cities and counties from enacting legislation that restrains local authorities enforcement of immigration-related laws, otherwise known as sanctuary ordinances. There are also bills pending in the Michigan Legislature that require heightened scrutiny and additional verification of the employment authorization of foreign national workers.

With each immigration law passed at the state level, the immigration system becomes more and more fractured at the national level. Michigan is not the first state, and it certainly will not be the last state, to try to address the national system's deficiencies through mis-guided policies at the state level. These state immigration laws are a clear indication of more to come and Congress would be wise to reform immigration at the national-level before each state takes it upon itself to enact its own immigration law.

On May 5, 2010, President Obama held a Cinco de Mayo Reception to celebrate Latino culture in America. He used the opportunity to voice his concerns regarding Arizona's recently enacted immigration law and, more generally, to discuss comprehensive immigration reform. In his remarks, the President signaled the need for comprehensive immigration reform and his desire to begin work on such reforms this year. He also made his disapproval of Arizona's immigration law clear, stating "the answer isn't to undermine fundamental principles that define us as a nation. We can't start singling out people because of who they look like, or how they talk, or how they dress. We can't turn law-abiding American citizens --- and law-abiding immigrants --- into subjects of suspicion and abuse." The President is undoubtedly sensitive to the racial profiling and discrimination that will inevitably stem from the enforcement of Arizona's new law.

Though it may comfort some to know the Administration will be closely monitoring Arizona's law, and evaluating the civil rights and other implications it may have, the only solution in the end will be comprehensive immigration reform. Comprehensive immigration reform, as noted by President Obama, will be difficult, especially because it will require bipartisan support which has not been easy to come by as of late. Regardless, it is the only solution that will "close the door on [the] kind of misconceived action" that we recently witnessed in Arizona.

In his speech, President Obama called for "common-sense, comprehensive immigration reform." He did not provide many details regarding his vision for comprehensive immigration reform, but what he did say was enlightening nonetheless. The President predictably spoke out in favor of securing our borders and holding businesses accountable for "undermining American workers and exploiting undocumented workers." The most interesting comment, though, was what the President said regarding illegal immigration. Specifically, the President stated that people who are living illegally in the U.S. should "admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law -- and then get in line and earn their citizenship."

In one very carefully crafted yet informative sentence, the President laid out his proposal for how to handle the current population of people living in the United States illegally. Though he never used the word amnesty, the President appears to be endorsing a program that would ultimately allow undocumented foreign nationals to earn U.S. citizenship. The problem of illegal immigration is one of the greatest challenges facing comprehensive immigration reform and it is encouraging to know the President has a realistic and constructive solution to the problem. Before comprehensive immigration reform can be debated in Congress, however, a proposal must first be put forth. No bill has been introduced, but the Senate Democrats have developed a conceptual proposal for immigration reform. The introduction of the Senate Democrats' immigration reform plan is the first measure in what will surely become the next hotly debated issue of the Obama Administration and, needless to say, the world and history will be watching closely as the debate unfolds.

As of May 2010, the unemployment rate in the United States is close to 10%, representing at least 15.3 million people out of work. Cities such as Troy, Michigan and Columbus, Ohio continue to struggle. Indeed the economy is improving but unemployment rate is expected to hold steady and with tougher H-1B review by USCIS and higher rates of H-1B denials, it is expected that more H-1B holders will lose their jobs in the next few months. While U.S. Citizens and permanent residents can collect unemployment benefits as they search for a new job, H-1B visa holders do not have that option. In fact, for H-1B visa holders, losing their job means losing their status.

There is a fair amount of confusion concerning whether there is a "grace period" after an H-1B visa holder's employment is terminated. Rumors abound that the 60 day grace period applicable to F-1 student status applies to H-1B status. Moreover, many interpret CFR 214.2(h)(13)(i)(A) as providing for a grace period after the validity period of the H-1B ends. Technically speaking, an H-1B visa holder is out of status once their H-1B has been revoked or expires. The 10 day period provided for in CFR 214.2(h)(13)(i)(A), however, is intended to provide the foreign national time to wrap up their affairs and leave the United States. It is not, unfortunately, meant to provide the foreign national time to find and port to a new H-1B position. What, then, are the options for H-1B visa holders who have been laid off?

Despite the lack of a formal grace period, one option may be for an H-1B visa holder to port to another H-1B employer. Depending upon the amount of notice the employer has provided, the H-1B visa holder may be able to secure a new H-1B position before their termination is effective. For example, if the H-1B employer gave the H-1B visa holder two months notice before their termination became effective, the H-1B visa holder may be able to find and port to a new H-1B position before their H-1B is revoked. Under the American Competitiveness in the Twenty First Century Act, the H-1B employee can begin working with their new H-1B employer as soon as the new employer files a portability petition with the United States Customs and Immigration Services (USCIS). Thus, it may be possible for the foreign national to port to the new H-1B position before their original employer revokes their H-1B status.

If the H-1B employer has not provided sufficient notice or porting is not an immediate possibility, another option is for the foreign national to change status. A change of status, though, is highly dependent upon each individual H-1B visa holder's situation. For instance, an H-1B visa holder may be able to change their status to F-1 student status. This may be difficult, though, considering the H-1B visa holder must be accepted and begin classes within a short period of time. Another option may be a temporary change of status to a B1/B2 visa or to a dependent status such as H-4 or L-2, again depending upon the foreign national's specific circumstances. Additionally, if an H-1B visa holder has commenced the permanent resident process, they may be eligible to work in a substantially similar position on an EAD card.

An H-1B visa holder that is being laid off should immediately consult with an experienced immigration attorney about their individual situation. The H-1B employee should thoroughly understand their options for remaining and working in the United States after the lay off. And it is important to remember that time is of the essence, because for an H-1B visa holder losing their job means losing their status.