Immigration Visa Attorney Blog

In a down economy with higher unemployment, it is easy for programs like H-1B to be cast as standing in the way of Americans finding new and higher paying jobs. Our readers here in Columbus, Ohio have heard us challenge that narrative on a number of occasions.

And that is why a recently released study by the American Enterprise Institute for Public Policy Research has the potential to be of significant benefit in terms of public opinion on the issue.

AEI's study contains a number of eye-opening findings, foremost among them that an average of 262 new jobs for Americans can be linked to every 100 foreign-born workers graduating from U.S. universities with advanced degrees in science, technology, engineering and mathematics (STEM). The study looked at the eight-year period between 2000 and 2007.

"Immigrants with advanced degrees boost employment for US natives," the report says in its executive summary.

Continue reading "Columbus, OH Attorney: Study Details Benefit of Skilled Immigrants to Job Creation" »

Readers of the blog know that reform with respect to the EB-5 Immigrant Investor and H-1B visa programs are topics we touch on rather frequently. (Entries can be found HERE and HERE.)

Which is why we find a recent speech by Michigan governor Rick Snyder incredibly positive in terms of bringing attention to what those at the state level are seeing. His remarks are especially relevant to our friends in Troy, Michigan, given the importance of job creation in the state.

In an address last week at Delta College, Snyder said he would petition Homeland Security to make permanent the EB-5 program, which is set to expire in September of 2012. "The EB-5 foreign investor program provides international investors the chance to live here by investing in Michigan's economy and creating job," he said.

EB-5 grants permanent U.S. residence to foreign nationals investing at least $1 million into a business that creates or maintains ten jobs. Other components of the program include a $500,000 category for investment in designated areas with high unemployment.

Continue reading "Michigan governor to push for EB-5, H-1B reform" »

A recent report on the United States Citizenship and Immigration Services (USCIS) paints a disturbing picture of the how the organization charged with overseeing lawful immigration in this country operates. We feel it provides some useful insight for our readers and clients in Columbus, Ohio and Troy, Michigan.

In a report dated November 22, auditors from the Government Accountability Office (GAO) said that a $1.7 billion project to modernize operations at USCIS has been plagued by unreliability related to cost and planning.

In late 2008 USCIS awarded a technology and services project to IBM that was supposed to "move the agency to a new centralized and consolidated electronic environment that will enable faster, more efficient and accurate immigration benefits determination and processing." The contract was initially given $491.1 million in options for five years.

Continue reading "Columbus, OH attorney on report of USCIS mismanagement" »

We wanted to touch on a national initiative that the United States Citizenship and Immigration Services (USCIS) has undertaken to combat fraud related to immigration services provided by non-attorneys.

Malfeasance related to immigration services provided by those not licensed to practice law is a serious issue and it's important our readers are aware of what the government is doing to tackle the problem.

This year the USCIS has launched a program that aggressively targets scam agencies which prey on the immigrant community by promising unrealistic servicers. Unusually fast acquisition of green cards and work permits are offered using email and word mouth, among other means.

The initiative focuses on enforcement and education, along with collaboration with those in the community. USCIS is targeting unauthorized practice of immigration law and is setting up a database to better manage consumer complaints.

Assistant Attorney General for the Civil Division of the Department of Justice Tony West said: "This coordinated initiative targets those who prey on immigrant communities by making promises they do not keep and charging for services they are not qualified to provide."

Continue reading "Columbus, OH immigration attorney on the unauthorized practice of law" »

A few years back this blog touched on a few of the specifics connected with extending an H-1B visa beyond six years. Given how many of our clients here in the Columbus, Ohio community work closely with the visa we thought another look at this aspect would be helpful.

What is the history of 7th year H-1B extension?

Prior to 2000, if a foreign national here on an H-1B visa could not reach I-485 (permanent resident) status within six year they were required to leave the U.S. What would often happen is that delays in the permanent residence application process meant H-1B visa holders would reach the end of their six years before completion. Since the situation meant employers often lost the investment they had made in skilled employees, Congress elected to introduce AC21.

What is AC21?

In 2000 Congress passed the "American Competitiveness in the Twenty-First Century Act," or AC21. Among other things, AC21 allowed for H-1B workers to begin working for a new employer upon filing the petition instead of waiting for approval. It also provided the ability to extend the H-1B visa beyond six years if an ongoing PERM Labor Certification began at least 365 days prior to the end of the sixth year.

Continue reading "FAQ: H-1B Extensions Beyond Six Years (Part I) " »

Late last month the United States Citizenship and Immigration Services released the most recent count for its H-1B visa. These numbers represent what the USCIS has received since the the FY2012 schedule began in April.

As of July 22 there have been 21,600 regular petitions accepted by the USCIS out of a total cap of 65,000. That is an increase of 1,000 from the previous week's total.

The Master's Exemption category has had 13,300 petitions accepted out of hits total cap number of 20,000. On July 15 the USCIS reported 12,800 petitions were accepted for this advanced degrees category.

These numbers are somewhat low, perhaps reflecting the economy's sluggish recovery. The positive is that it means there is still ample opportunity to qualify for a visa that begins in October of this year.

A Form-129 needs to be completed in the most complete manner possible for an applicant to have his or her best chance for the petition to be approved. Because of the emphasis the process places on accuracy we recommend seeking experienced counsel for help working through the forms.

Here is some of the most recent information regarding the controversy surrounding Indian IT giant Infosys. The actions of a large company based overseas may not initially seem relevant to the average employer or worker here in Columbus, but the way Infosys may or may not have manipulated the U.S. immigration systems could certainly have ramifications at home.

In May an attorney employed by Infosys named Jack Palmer Jr. filed a civil suit alleging his superiors at the company tried to get him to circumvent U.S. regulations regarding visas. Additionally, Palmer claimed that when he informed his employer of illegal activity it did nothing to correct the problem.

The result of Palmer coming forward is that federal prosecutors are currently assembling a case against Infosys. So far Infosys has not publicly responded to the charges, though it denied Palmer's claims in court filings. Late last month the company filed a motion compelling arbitration in the case, the result of which would be to have the case heard behind closed doors.

In his suit Palmer alleges that Infosys wanted him to help them "creatively" navigate around restrictions put in place to make acquiring H-1B visas more time-consuming. According to Palmer Infosys made the decision to use B-1 visas - easier to obtain but used primarily for shorter visits - to game the system.

Infosys, Palmer says, asked him to write letters on behalf of the workers to be used in the B-1 application process. In those letters he was to state the employees were only visiting for short periods of time, when the truth was they had full-time employment waiting in the U.S.

Palmer refused to write the letters, after which he says he was told he was "not being 'a team player.'"

Continue reading "Columbus, OH Attorney Updates the Infosys Investigation" »

The U.S. Open golf tournament took place last month at Congressional Country Club just outside of Washington D.C. It is considered among the most prestigious tournaments in the world. This year it also had a connection to the world of immigration.

While we don't imagine many among our readership are members of the PGA tour, we thought those here in the local community would appreciate a story about the hurdles everyone has to jump through.

Robert Rock, a professional golfer from England, qualified for the tournament two weeks prior to the event, which began play on June 16. But traveling to Bethesda, MD for the event meant Rock would have to acquire a visa.

And though he started the process on May 30, a driving-under-the-influence offense committed as a teenager would delay the proceedings for 34-year old Rock and create one of the tournament's more interesting sub-plots.

After winning the Italian Open on June 12 (the first victory of his career), Rock found he was not approved to travel and couldn't fly from Turin to the U.S. So instead he flew back to London. In England he met with U.S. immigration officials, approximately 72-hours before his tee time at the Open.

Rock's visa was finally approved at about 4pm on Wednesday, meaning he had approximately 22 hours to get himself to the states or lose his place in the field. The golfer was complimentary of the U.S., saying afterwards he thought "(The US Embassy) rushed it through as fast as realistically you can do . . . they did a great job for me."

Continue reading "Professional Golfer Faced Visa Struggles to Play American Tournament" »

Readers of this blog are aware Shihab & Associates supports reforming immigration, specifically lifting the cap on visa programs like H-1B. We feel the United States and its economy will benefit in numerous ways from the addition of more of these kinds of skilled workers.

A component of the visa debate that seems to get less discussion has to do with the families the workers bring to the U.S. To that end, the nonprofit National Foundation for American Policy (NFAP) released a policy brief last month entitled: "The Impact of the Children of Immigrants on Scientific Achievement in America."

The brief focused on the Intel Science Talent Search, a 69-year old research competition that allows high school seniors to present original scientific research. Each year a small group of students are chosen as finalists, with the top-three awarded prizes totaling more than $225,000.

NFAP found that "while only 12 percent of the U.S. population is foreign-born, 70 percent of the finalists in the 2011 (Intel competition) were the children of immigrants." Additionally, 60 percent of the 40 finalists were children of parents who entered the country on H-1B visas, despite former H-1B holders making up less than one percent of the country's population.

China was the country of origin for 16 of the finalists, with ten hailing from India, one from Iran and one from South Korea. The information came from a series of interviews and follow-up interviews conducted by NFAP.

Continue reading "Study Shows Children of Immigrants Among America's Brightest." »

This is another interesting decision handed down recently by the Board of Alien Labor Certification Appeals (BALCA). In May the Department of Labor's appeals arm handled a case which spoke to the importance of clearly providing evidence for why local recruitment efforts came up short. For our friends in and around Columbus it is yet another instance of why expert counsel is so critical in the employment certification process.

In September of 2007 a company filed an Application for Alien Employment Certification for a position titled "Software Engineer." According to the Employer, the position required a Master's degree in Computer Science and either two years experience in the specific job offered or a "suitable combination of education, training, or experience."

Later that year a Certifying Officer (CO) issued an audit that requested all recruitment documentation, including a report required by the Code of Federal Regulations (C.F.R.). The response from the Employer stated that two candidates were evaluated for the position. But based on the resumes submitted, their experience with respect to key web-related software "indicated a serious gap in the skill sets required to meet the goals and objectives of the company."

In September of 2009 the Employer's request was denied by the CO on five separate grounds. The CO felt the recruitment report made only a "generalized statement" about the U.S. workers not meeting the position's minimum requirements. A failure to include an "unaltered" copy of the notice of filing, wage determination and web advertisement was listed, as were three cases where the Employer's paperwork was inconsistent or lacking a requisite piece of information.

In October the Employer requested reconsideration. With that request the Employer attached an amended report explaining its rejections of the two U.S. candidates, as well as information clearing up the issues with its paperwork.

And while in June of 2010 the CO found the information regarding wage determination and job order to be acceptable, they still did not find the recruitment report met C.F.R. standards. The CO stated it did not even consider the amended recruitment report.

Continue reading "BALCA: Local Recruiting and Labor Certification" »

It is important to keep in mind the range of options available within the United States immigration system. Employers in search of qualified professionals may not have to look far from our borders to fill their needs. Certain Canadian and Mexican citizens are eligible for TN visas if they have employment in the U.S. With that in mind here is a refresher for the TN nonimmigrant program. Anyone with questions about this or other related issues should feel free to contact our office here in Dublin.

The TN classification came out of the North American Free Trade Agreement
(NAFTA), which created a unique relationship between the United States, Canada and Mexico. Part of that process was to allow certain professionals who are citizens of one country to enter territories of the others to accept employment.

There are several employment or work related visas are available, such as - L-1, B-1, E-1. Another is TN, which applies to citizens from Canada and Mexico who wish to enter the U.S. They must have a pre-arranged position with a U.S. employer and be qualified for a NAFTA-approved profession.

NAFTA lists more than 60 positions as being eligible for TN. Professions such as
Engineer, Pharmacist, Computer Systems Analyst, University Professor and Veterinarian are among those that qualify. NAFTA also outlines the education/experience requirements for each profession.

The TN application for Canadian professionals can initially be completed at a port-of-entry. Proof of citizenship must be provided, along with establishing qualifications for the profession as well as giving a description for the profession. A letter from the prospective employer, diplomas and transcripts will be needed. The visas are granted for up to three years.

Mexican professionals must apply at a U.S. embassy or consulate within
Mexico. They are not required to file a petition with the USCIS but they are required
to obtain a visa to enter the U.S. as a TN nonimmigrant. Once the Mexican professional has been approved for the TN visa they are able to apply for admission at a port-of-entry.

Continue reading "Columbus, OH Immigration Attorney Reviews the TN Visa" »

This is a recent Department of Labor appeal we would like those in the local community to take a look at. The case involves the way in which experience is defined as it pertains to time on the job vs. time spent in school.

In April of 2009 a Certifying Officer (CO) denied an employer's request for
Permanent Employer Certification (PERM) for the position of Product Manager on two separate grounds. One reason was that the alien did not meet the minimum experience for the position under the Code of Federal Regulations (CFR).

Under CFR the minimum qualification for the position is a "Bachelor's Degree in Merchandising and five years experience in the field or equivalent combination of education and experience." It was that piece of regulation the CO cited when making the denial.

In a request for reconsideration on May 1, 2009, the Employer argued that the alien had "one year of university credit" and had been on the job for 14 ½ years. The Employer felt the year of education and job experience was enough to equal 17 years of overall experience.

On February 18 of 2010 the CO denied certification. The CO pointed to a 1994 policy guideline on certification issues which a bachelor's degree is equivalent to two years of experience. That would mean a Bachelor's degree and five years of experience would be equal to seven years in the work place, not 17.

That meant the Employer's formula was not "substantially equivalent" to the primary requirements of the job.

Continue reading "Columbus, OH Attorney: BALCA Looks at Work Experience" »

As readers of this blog are aware, we're of the opinion the H-1B program is a flawed system. (Read our recent four-part analysis of H-1B HERE, HERE, HERE and HERE.) Last week a key member of the United States House of Representatives offered one way to attack the situation.

During a March 31 hearing before the House Subcommittee on Immigration Policy and Enforcement Rep. Lamar Smith (R-Texas) brought up the possibility of limiting the number of professions which qualify for H-1B status. The thinking for Smith, the chairman of the House Judiciary Committee, was that giving more visas to technology businesses might be the best option in the current political climate.

Smith's suggestion seems to stem from a feeling that increasing the number of H-1B visas from its current 85,000 annual cap may not be realistic.

Recent congresses have been unwilling to address small portions of the immigration issues before comprehensive immigration reform has taken place. At this point it is not known what the current Congress would support.

So while roughly half of the H-1B visas are used for tech positions such as computer programmers and IT specialists, the rest are used in industries related to fields like fashion and photography. Smith's feeling is that given the potential job-creation benefits associated with tech fields, they may be more important to the country's economy.

"There is nothing wrong with these occupations," Smith said, adding "but I'm not sure that (they) are as crucial to our success in the global economy as are computer scientists."

If other occupations are no longer eligible for H-1B, then more visas would be available for the tech industry. Focusing on scientists and engineers, Smith argued, could be a solution to the program.

Continue reading "Columbus, OH Attorney: Congressman Suggests Change to H-1B Program" »

The United Stated Immigration Services (USCIS) will begin accepting
application for the H-1B visa Friday, April 1. Those applications cover any
employment with a starting date on or after October 1. Our office in Columbus,
Ohio can offer assistance in H-1B-related filing.

The H-1B program is applied to nonimmigrant aliens who want to work in specialty fields. The Department of Labor defines specialty as "one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor's degree or its equivalent."

The program has a cap of 85,000, with 20,000 of the visas going to those with U.S. masters' degrees (or higher). The USCIC will accept applications until they have received enough cap-eligible petitions.

A more thorough overview of the H-1B program can be found HERE.

The USCIS monitors the petitions received and notifies the public when the numerical limit has been met. For FY2011 the regular cap number was reached January 26, 2011.

As we mentioned a few weeks ago, this USCIS is considering a change to the H-1B process involving an advance electronic registration. As early as FY2013, employers may be able to register petitions prior to the start of the petition filing period. The idea would be to cut down on administrative costs, as employers would be able to limit filings to those selected petitions.

The government estimates the program could save more than $23 million over the next decade. The USCIS is still seeking feedback for the proposal and those interested in comment can find information HERE.

Continue reading "Reminder: FY2012 H-1B Cap Season Begins Today" »

Here's another recent Department of Labor appeal case for those in the community to take a look at. This one involves analysis of how exactly we define experience when it comes to time on the job vs. time in school.

In April of 2009 a Certifying Officer (CO) denied an employer's request for Permanent Employer Certification (PERM) for the position of Product Manager on two separate grounds. One reason was the alien did not meet the minimum experience for the position under the Code of Federal Regulations (CFR).

Under CFR the minimum qualification for the position is a "Bachelor's Degree in Merchandising and five years experience in the field or equivalent combination of education and experience." It was that piece of regulation the CO cited when making the denial.

In a request for reconsideration on May 1, 2009, the employer argued that the alien had "one year of university credit" and had been on the job for 14 ½ years. The employer felt the year of education and job experience was enough to equal 17 years of overall experience.

On February 18 of 2010 the CO denied certification. The CO pointed to a 1994 policy guideline on certification in which a bachelor's degree is listed as equivalent to two years of experience. That would mean a Bachelor's degree and five years of experience would be equal to seven years in the work place, not 17.

That meant the employer's formula was not "substantially equivalent" to the primary requirements of the job.

The case was turned over to a judge with the Board of Alien Labor Certification Appeals. After outlining the way the PERM process is supposed to function - "exacting" rather than drawn-out - the judge would ultimately find for the CO.

Continue reading "Columbus, OH Attorney: BALCA Looks at Work Experience" »