In a time honored tradition designed to foster votes in the upcoming election, we are seeing yet another immigration bill offered, this time by Rep. Issa from the San Diego area. The bill primarily changes the rules impacting dependent users of H-1b employers and changes the threshold wage for exemption from $60,000 to $100,000. Just like every other immigration bill being introduced, it has no chance at being passed this year. My problem with the bill is not its content. Frankly, no objective person could argue that the exemption salary floor which has been in place since 1998 is at the correct level. My issue is with yet another immigration proposal that will never be debated, never voted on it, and never has a chance to bring about change.
Many people read the headlines last week and saw that the Supreme Court had ruled that President Obama had exceeded his Executive Action authority on immigration and wondered if it impacted any of the employment related executive actions such as H-4 EADs or OPT STEM, etc and the answer is not at all. The Supreme Court SCOTUS DAPA decision impacted only one aspect of President Obama’s executive actions, namely, the DAPA program. All other programs were left intact.
In the last several weeks, at least two lawsuits have been filed relating to the H-1b lottery. The first filed by AIC and AILA allege that the USCIS improperly counts the petitions filed. The complaint arises out of a FOIA request in which the USCIS failed to provide full documentation regarding the lottery system and the allocation of visas. Many attorneys have long believed that the lottery system is replete with inaccuracies. The second brought by two companies that did not have filings chosen in the lottery, alleges that the random lottery itself is a violation of the statute. We will keep readers updated on these two Federal Court actions.
Computerworld reported on a discussion in the House on major changes to the H-1b visa and immigrant visas. No bill has been released yet and we are obviously a long way from any change but, at least people known for reasonable stances on business immigration are putting forth ideas. We will keep you updated as information becomes available.
The Department of State (DOS) has released the June Visa Bulletin. As expected, the “dates for filing” chart remained unchanged. Unfortunately, due to high demand from I-485 filings, the “final action date” chart saw major retrogression in the India EB2 and PRC EB2 and EB3 categories. In commentary, the DOS stated that India EB2 is expected to advance forward only a few weeks each month through the end of the fiscal year (Sept 2016). The news is worse for both EB2 and EB3 PRC which are not expected to move forward at all until the new fiscal year (Oct 2016). Retrogression remains a major problem for legal immigrants but, is likely to receive no legislative attention in the foreseeable future.
Today, April 1st, marks the first day that H-1b cap petitions can be filed seeking a new H-1b visa from the FY 2017 quota. The quota is set at 85,000 total with 20,000 being set-aside for persons with US masters degrees or higher. All H-1b petitions must be filed by a US employer and the pay offered must meet the prevailing wage established by the DOL. All individuals who have filings done for them must have at least a bachelor’s level education. The majority of filings are for STEM positions. As a result of demand exceeding supply, the USCIS has created a lottery system and all filings received in the first 5 business days of April will be included in a random drawing for the coveted visas. The lottery is typically held the 3rd week of April and those petitions lucky enough to be chosen are then processed. Those cases not selected in the lottery are returned to the employers who filed them. Last year, over 220,000 petitions were submitted. Many are expecting over 250,000 this year. The fact that the US immigration policy allows for the selection of highly skilled workers, most filling STEM related, hard to fill positions, by random chance is absurd. Unfortunately, the anti-immigration far right led by Grassley, Cruz, and Sessions have thwarted any attempts to reform the legal immigration system into a system that does a better job of selecting international workers while still protecting US jobs. It is as if they actually are in favor of the status quo i.e. dysfunction as it gives them something to beat their chest about. The rhetoric coming from the Presidential race indicates that we will be left with the lottery for some time.
Customs and Border Protection has stated that they will only accept educational equivalencies prepared by members of the National Association of Credential Evaluation Services (NACES.ORG) for cases presented at the Preflight Inspection or Port of Entry. A review of their website indicates that only 19 educational evaluation services providers are listed including the Foundation for International Services, Inc. and World Education Services, Inc. But other equally reliable service providers are not. Membership to NACES is by application and requires completion of a rigorous screening and selection procedure, which includes a two-member on-site visit at the applicant’s expense.
The DHS has released the long anticipated proposed regulation which promised to provide greater portability to H-1b workers with approved I-140’s. A copy of the complete rule can be found here. Comments on the proposed rule are due on Feb 29, 2016 and the rule is not in effect until it becomes final, sometime after the comment period. Our office will be providing a detailed summary to clients next week. I hate to throw cold water on what should be a day of celebration but, a quick read through does not indicate that the portability provisions are as gracious as promised. There are however, other really good provisions which will be very positive for international professional workers and their employers. Happy New year and we wish everyone a great 2016.
On November 20, 2015, the USCIS released its draft memo on Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability for comment. A copy can be found here. The memo details how Officers should evaluate two different sets of job duties as they relate to Standard Occupational Classification (SOC) codes. Of note, is that the same or similarity of the two position can be shown if the jobs are found within the same broad occupational group code, the first 2 digits. Officers are also instructed to take an individual’s career progression into consideration and they may also consider the difference in the individual’s wages. The comment period end January 4, 2016.
At a time when the US refugee program is under attack and Donald Trump is pounding his fist and screaming about building a wall and forming a quasi police force to round up and remove 11 million undocumented persons, Senators Grassley and Durbin have also sprung to life and re-introduced legislation from 2007 that would severely and negatively impact the IT and engineering staffing industry, all under the guise of protecting US workers. The thought is well-meaning but, the plan has already been rejected on at least 2 other occasions. The H-1b program needs reform but, it needs fresh ideas not tired old re-treads.