Immigration Visa Attorney Blog

Despite Canada and the US having a relationship spanning more then two centuries and sharing one of the most successful international relationships, Canada is clearly capitalizing on our failed immigration policies.

On November 28, 2008, the Canadian Government introduced major changes to the Economic Class permanent immigrant category. The Economic Class now includes a Provincial Nominee Program. To qualify for a permanent residence in Canada under the Alberta Provincial Nominee program, U.S. H-1B holders need NOT have a job offer in Canada to obtain residency. The applicant must only be working in the US for one year under the valid non-immigration visa, and must have one year working experience in "a major high demand occupations" . Recent advertisements in major newspapers in the US, goes like: "Alberta, Canada Welcomes H-1B Visa Holders and Their Families. Work Here. Live Here".

This is like a boon to all US H-1B visa holders who have to wait for more than 6 years to get that elusive green card and the security it brings. Why should they live in insecurity in the US, when Canada is offering a better solution? H-1B visa holders in the US are increasingly tired of their temporary status, where their future hangs in the balance as politician argue.

Continue reading "H-1B VISA: One's Loss is Another's Gain" »

We are starting to see the beginning of the immigration reform debate. Robert Menendez (D-NJ) introduced The Military Families ACT which if passed would allow USCIS to grant permanent residency to children and spouses of those honorably serving or have honorably served in the Military even if the spouse or child is undocumented alien. Several Democratic members of Congress already voiced their support to this legislation.

Traditionally, only US citizen applicants are permitted to immediately confer permanent residency status to spouses and children, but not if they are undocumented. This Act attempts to correct this situation and take care of family members of the military personnel.

According to the Immigration Policy Center, currently there is 114,601 foreign born persons in the armed forces. They represent 7.91% of active duty personnel. Most foreign born personnel in the military were able to acquire Citizenship pursuant to Sec. 1440 of the INA which conferred Naturalization through active-duty during periods of military hostilities. But this law ironically does not extend status to their family members.

The US has been at war for more than eight years. The continued need for foreign born military personnel with various language and other skills is clear. The passage of this legislation to protect the family of this important group is without a doubt is in our clear national interest.

Rest assured that this bill is far from being signed into law. Many believe that this legislation should be part of the overall immigration debate which will not be jumpstarted before the next year. Also, expect opposition form some lawmakers such as Representative Lamar Smith who simply does not think this is necessary.

Veterans Day: It is the day we honor our men & women who served and sacrificed. Large number of Immigrants has served and continues to server in our military. Many of them have sacrificed their lives to protect our American values. I have the pleasure of representing some of them as an attorney. According to CATO Institute, more than 700 Congressional Medals of Honor were given to immigrant veterans. This is more than 20% of all recipients. To all Veterans, happy Veterans day.

"Outsourcing" has recently became a codeword for things that are not good for America.
For example, Senator Grassley recently sent a letter to the Department of Homeland Security asking for a tight screening of the H-1B program, to avoid abuse and fraud in the system. He stressed on employers being held accountable, for violating the visa program and to prevent H-1B outsourcing.

The Senator was highly critical of H-1B outsourcing. But outsourcing in the US is an integral part of any business model. It appears the Senator was confusing between H-1B outsourcing and Offshore outsourcing. The latter normally referrers to a situation where jobs are lost to foreign workers becuase US companies are setting centers overseas. H-1B outsourcing, on the other hand, is when companies use other companies to provide services in the US through the use of H-1B workers. They are not the same.

Many argue that neither is bad for the US economy in any event. According to a study by the Information Technology Association of America (ITAA), offshore outsourcing of US IT jobs to foreign workers is beneficial to the US economy thereby resulting in the creation of twice as many jobs as are displaced. Outsourcing helps companies be more productive and competitive. The savings from outsourcing are invested in new products and services resulting in market expansion and creating new jobs.

Senator Chuck Grassley, however, keeps referring to 'outsourcing H-1B' to other companies as being a bad thing. Perhaps he is unaware that this is permissible under H-1B visa laws provided companies comply with the H-1B prevailing wage regulations. Outsourcing is vital as an economic business model.

Senator Chuck Grassley may disapprove of outsourcing H-1B workers; reality is that outsourcing within US companies is the norm. For example USCIS outsourcers its fingerprinting services and customer service response to private US third parties. Senator Chuck Grassley's well publicized hostility towards the H-1B visa program is based on misguided information. He is clearly not well informed of the benefits of the H-1B visa program to our economy and that outsourcing H-1B workers is permissible under US laws.

At least someone is trying to save one of our most vital immigration visa programs to our sustained scientific and innovative world leadership, the H-1b visa program. A bill introduced by Rep Gabrielle Giffords in March 13, 2008 referred to as the Innovation Employment Act, is getting some attention lately. The Act is an attempt to reform the H1-B visa program. From Columbus, Ohio & Michigan to both coasts, it is the visa that America's highly technical industries rely on to hire highly skilled foreign nationals to work in the United States.

One of the key reform features of the Bill is to increase the current H-1B visa cap from the current 65,000 to 130,000 a year. Additionally there would be no H-1B visa cap on foreign nationals who have studied science, technology and related fields in U.S Colleges. The current H-1B visa cap is 20,000 for US Masters Degree holders in all fields (referred to as the H-1B Advanced Degree Exemption). Another key reform feature is to prohibit companies with more than 50 employees that have more than half of their staff as H-1B workers, from hiring more H-1B workers. The Act also would prohibit employers from advertising jobs as available only to H-1B workers.

The Innovation Employment Act is supported by Microsoft chairman, Bill Gates. He said America provided the world's best universities and yet foreign students were not allowed to stay and work in the country. The legislation would allow access to the best talent available from all over the world. Microsoft believe that the bill would increase U.S jobs; Microsoft hires four local people to support each H-1B worker.

The proposed Act would be a step in the right direction to control outsourcing and keep jobs home. Many proponents believe that the proposed Act can be beneficial to our economy. It keeps foreign talent in the US so they don't leave to competing countries, where jobs follow them. It is no secrete that large companies have relocated some of its operation overseas to seek talent unavailable in the US. Microsoft has moved certain branches to India, Canada & Mexico.

Continue reading "H-1B Legislation Getting Some Attention" »

What are the elements that constitute an approvable H-1B petition? This is the question that my clients who call my Columbus, Ohio office ask frequently. What can the employer and employee do to help their visa attorney get the best results for them. I have a client in Washington, DC once tell me, please give me a list of your most important items that would help you get my case approved.

As an H1b attorney who filed more than 1000 petitions in my career, there are 3 main issues in mind that would determine whether an H1b petition will be approvable: 1) issues related to the employer; 2) issues related to the position; and 3) issues related to the prospective employee.

Issues related to the employer normally depend on whether the employer has the ability to pay the wages of the prospective employee, whether the employer is truly an employer and not an agent who places employees at temporary assignments without controlling much of their activities. Depending on the size of the employer, the USCIS will take a differing position. Our firm has for more than a decade represented large employers having more than 30,000 employees obtain visas and green cards. I have also represented many small firms whereby we filed H1B petitions for their prospective employees. If you are a large employer, chances that USCIS is comfortable about the size of the organization and will trust that the employer does have the ability to pay the wages of the employee and that it also passes the IRS test of employer-employee relationship in that it controls the activities of the employee on a daily basis.

Now, when it comes to the smaller employer, the story is drastically different. The smaller employer (less than 50 employees) has additional documentations to submit to create this comfort level depending on the circumstances. These additional documentation include, but are not limited to, the existence of in-house projects, business plans, contracts for work, financial information and many more. When it comes to smaller employers, proper planning must be undertaken as the days of USCIS rubber stamping H1B visas are over. In addition, it is important to note that USCIS is now keeping a keen eye at smaller employers as there is a feeling that such smaller employers do violate the regulations frequently. Smaller employers are encouraged to plan their H1b petitions with competent H1b lawyer, one who has many years of experience in H1b petitions in order to assure that contradictory information is not filed. This is what our firm has preached for almost a decade: get your story right before the USCIS! This is concerted effort between H1b immigration lawyer and the employer jointly.

Continue reading "H1B Lawyer on Filing Approvable H1B Petitions" »

Due to the difficult economic conditions, the Department of Labor has hinted that it will implement supervised recruitment on more cases going forward. This, in essence, rolls back the clock five years on the progress made in streamlining the Labor Certification process under PERM. Currently, the PERM labor certification process is an audit based system. This means that the application under PERM is filed without supporting documentation and DOL either randomly or based on trigger system audits the applications for compliance.

While not all cases will be processed under supervised recruitment, larger percentage of cases will be subject to this process. Supervised recruitment is spelled out in 20 CFR 656.21. Pursuant to the regulations, it gives the Certifying Officer the choice of requesting a supervised recruitment process. The Certifying Officer is the person with the responsibility of issuing labor certification. The practical impact is a slower process. Under the supervised recruitment, there are additional steps to be undertaken, not required by PERM, and they are summarized below.

Continue reading "Labor Certification Supervised Recruitment is Coming your Way Soon" »

As the list of companies receiving TARP funds has exceeded 550 institutions across the country, human resource managers and company executives have made it unambiguous that they are concerned about H-1B compliance. Under the Employ American Workers Act, (EAWA) signed into law this year, TARP fund recipients will be treated as H-1B dependent employers when they hire foreign nationals on H-1B visa. This law does not include those employed by the TARP fund recipients on, or before February 16, 2009. The normal exemption for foreign nationals receiving a salary of $60,000 or higher, or having a relevant master's degree is not available for companies receiving TARP money.

The reason that many of the 550 plus companies should be careful is twofold: The first challenge large employer's face is compliance with the H-1B dependant attestations without utilizing an elaborate and expensive tracking system; the second is applicability of The False Claims Act on TARP funds recipients.

H-1B Dependent Requirements:

H-1B dependent employers must make certain promises and must be able to demonstrate compliance if audited by the Department of Labor. TARP fund recipients who file H-1B petitions:

Continue reading "The TARP H-1B Application." »

Any Ohio labor certification attorney will tell you that prevailing wage determinations in Ohio have been consistently higher than other states for years. In a recent decision The Board of Alien Labor Certification Appeals (BALCA) in the matter of Reed Elsevier, Inc., 2008-PER-00201 agrees. The prevailing wage is the wage determined by the state agency to be paid to a foreign national if they are to obtain an employment based green card through labor certification. In reversing The Certifying Officer affirmation of a prevailing wage determination, the court stated that Ohio "drastically changes the character of the position, essentially increasing the yearly wage by over 25% and doubling the wage level at which the position would otherwise be classified."

The court affirmed that Ohio has improperly upgraded the wage requirement to the highest possible level (level IV) by incorrectly combining experience and education in its analysis. In the case decided, , a level IV wage was assigned to an Engineering position because the employer required a Masters Degree plus one year of experience. BALCA's ruling states that the proper wage level for this type of position with the aforementioned requirements should have been equivalent to a level II wage.

Continue reading "Ohio Labor Certification Prevailing Wage Level Improperly Doubled, Court Rules" »

There has been a recent spike in Requests for Evidence in adjustment cases questioning the intended work location of the foreign national and seeks confirmation of the permanent employment offer. The typical inquiry questions the intended place of permanent employment when USCIS observes, after reviewing the adjustment application, that the foreign national may be working in a different work location than the one listed in the approved labor certification.

It is important to note that, employer's obligation to place the foreign national at the work location represented in the labor certification begins no earlier than the time the adjustment of status is approved. As such the employee/ foreign national may be located at other locations during the pending green card process. But the general rule regarding work locations is that if the intended place of employment changes, it renders the certified labor certification invalid, resulting in a denial of the adjustment of status. The exception is roving employees where the labor certification will be filed reflecting the employment location where the company headquarters is located, or in instances where the employee - foreign national is working for a different employer and is taking advantage of the American Competitiveness In The Twenty-First Century Act of 2000 (AC21) .

If the foreign national is working for a different employer and the adjustment of status has been pending for more than 180 days, then the work location may be anywhere in the US, so long as the AC21 guidelines are followed. Namely, the job is of the same or similar occupational classification. Note that the body of AC21 law interpretations and administrative memos addressing its applications and limitations is growing in complexity. As such, it is critical to consult with a competent immigration attorney before accepting a job offer from another employer to ascertain that the job change will preserve the pending green card application.

There is no debate that a comprehensive immigration reform is long over due. We must make adjustments and modernize our immigration legal system to remain competitive in the 21st century. AILA yesterday published a Talking Point calling for the elimination of the employment based immigrant visa backlog. The argument they made is clear and concise. We can not attract the best talent and stay competitive, if it takes up to seven years to issue a green card.

In today's employment immigration system, a green card application is filed while the candidate is in his twenties to receive approval in his thirties. By the nature of the process, we end up stifling entrepreneurial spirit rather than encouraging it. The foreign national is restricted in undertaking an intellectual or financial chance due to the uncertainly and the restrictions imposed by the pending application.

Most will agree that creative and productive talents are impatient by definition. The most talented and capable individuals will not wait a seven year period for a green card to come through. Consider the case of Sanjay G. Mavinkurve, featured in NY Times. Sanjay, an Indian national, is one of the key engineers that developed Facebook. Sanjay moved to Canada because the lengthy immigration process in the U.S. prevented him from joining his wife while the application is pending. Sanjay's story truly demonstrates the failure of our immigration system. The fact is there are many individuals who have left the U.S. for similar reasons as Sanjay.

While producing more homegrown talent is a priority, the truth is we must remain most hospitable to talents regardless of their origin. To that end, we must eliminate the immigrant visa backlog. AILA appropriately advocates that we should recapture all family based and employment based green cards not used in prior years, exempt family members form the current numerical limitation imposed on employment immigrant visas, and provide for appropriate exemptions for U.S. graduates in the field of science, engineering and mathematics. Finally, it calls for implementing a market based cap system that more appropriately addresses our need to remain more competitive.

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" »