In a story sure to get the attention of legislators in Washington D.C., and in my humble opinion rightly so, The New York Times ran a story today about H-1b workers being placed at Disney and the U.S. workers they were replacing being required to train them. The story was picked up and ran on the front page of msn.com and many other news outlets. Maybe this will be the impetus for Congress to get serious about immigration reform and craft legislation that recognizes the increased need for H-1b workers and provides for the protection of U.S. workers. No one should be asked to train their cheaper foreign replacement. At a time when the unemployment rate for IT workers is under 2% and we just had over 230,000 H-1b visa petitions filed for only 85,000 spots, this black eye on the H-1b program may be coming to light at the right time to force reform.
On May 21,2015, the USCIS issued new policy guidance for H-1b employers. This guidance was issued following the April 9th Simeio Solutions precedent decision from the AAO which determined that a change in employment outside the area of intended employment was a material change and required the filing of an amended petition. This ruling was a major departure from prior USCIS policy and practice. The May 21st USCIS memo was designed to explain how that new policy will be implemented. The memo makes the following points:
1. An amended petition must be filed BEFORE an H-1b employee can be moved to a new worksite outside the original area of intended employment.
2. A deadline of Aug 19, 2015 has been established for all employers to file amended petitions to reflect the worksite locations of any H-1b worker who has been moved from their original petition location.
3. If an amended petition is pending and a subsequent move is made, a 2nd amended petition can be made and an employee moved. There is no requirement to obtain a decision in the 1st case before filing the 2nd case.
The Simeio Solutions decision has a huge impact on employers in the staffing industry and now this memo requires that an amended petition must be filed before moving an employee, the impact grows. Further, with the memo making it clear that the new policy will be applied retroactively to existing H-1b workers, albeit, with a 90 day grace period, the negative consequences to U.S. employers will be even larger and, the benefit to the coffers of the USCIS will be as well. With an economic impact to U.S. employers easily exceeding $100 million annually, it is unclear how the USCIS decision makers believe that this change in policy is not in violation of the Administrative Procedures Act and should not have gone through the formal rulemaking procedure. Whether any company or trade association challenges this new policy on APA grounds is yet to be seen.
As a practical matter, H-1b employers should take the following actions:
1. Confirm the current worksite locations of all H-1b employees and determine if that worksite has changed from the original petition and, if necessary, take steps to file an amended petition prior to Aug 19, 2015.
2. Communicate to sales and deployment teams that any change in worksite location will take at least 10 days and there is an economic cost to said move that must be considered.
The Information Technology and Innovation Foundation (ITIF) recently published an interesting article addressing this issue and offered arguments that you can use the next time someone shouts at you and says “don’t you know, we got plenty of high skilled US workers without jobs and we don’t need no more foreign workers”
Ever wonder how the priority date cut-offs are established each month and been curious how the priority dates can fluctuate so drastically as if they are mere sailboats adrift in the wind ? You are not alone. Recently, a Federal Court of Appeals raised serious questions about Department of State procedures used to establish the dates. The Appellate Court closed their opinion by saying that it is not deciding at this point whether or not the Department of State is acting illegally; it is only saying that “the consequences of State’s current operations are quite consistent with [the Plaintiff’s] allegations that [the Department of State] has inadequately heeded [section] 203(e)(1)’s priority principle”. Further proceedings were ordered and this case is worth keeping an eye on.
The USCIS today announced that it had received approx. 233,000 H-1b cap subject petitions to be included in the lottery for 85,000 visas. They further announced that the lottery had been completed. They did not indicate when receipts would be issued but, did remind everyone that they expected to begin processing premium process filed cases by May 11th. Whether this the volume of cases filed will spur Congress to act on legal immigration is unknown but, I’m not holding my breath.
It seems like an absurd headline doesn’t it ? We are in 2015 in what we claim is one of the most enlightened countries in the world and this current administration certainly talks a good game about equality, transparency and fair treatment for all. The reality is far different at the USCIS. In a not so surprising discovery, the National Foundation for American Policy, released a report that disclosed that if you happen to be an Indian national that your odds of being denied an L-1 visa are 5 times greater than if you were from another country. From 2012-2014, the USCIS denied an astounding 56% of L-1b petitions for persons from India. Is there an explanation other than blatant discrimination ? Sure there is but, not a credible one. USCIS examiners at the urging of powerful political interests have linked outsourcing (which is the devil incarnate) to the L-1b visa and USCIS examiners have been doing their “patriotic duty” by denying as many L-1b visas as they can. The legal standard and meritorious nature of the case be damned. The economic impact to US business is irrelevant. The argument that denials actually eliminate US jobs and force greater outsourcing, often forcing US citizens and residents to be transferred overseas falls on deaf ears. When you don’t want to hear that a certain class of person should be treated fairly, there is no reason to listen. Deny! Deny! Deny! is the rally cry in the halls of the Vermont and California Service Centers ! In 2006, the denial rate for L-1b petitions was 6%; in 2014, it was 35% without a single regulatory or statutory change. It’s time to call it what it is ! Disparate treatment of one petition over another simply by virtue of one’s national origin.
Last week, Computerworld published comments from Senator Hatch in which he essentially called out Senator Grassley for being a protectionist and simply ignoring the economic realties of the global marketplace that exists in 2015 by virtue of his plan to prevent an increase in the H-1b cap without including unnecessary and onerous requirements. The proposals of Senator Grassley, though seemingly reasonable on the surface, would essentially destroy the H-1b visa particularly for IT staffing companies who are a large user of the H-1b program. Given Senator Grassley’s history of attacks on the staffing industry, his position should not be a surprise. It is refreshing to see Senator Hatch take a pro business and pro American position however, given Senator Grassley’s position as the chair of the Senate Judiciary Committee, he may have sufficient power to single-handedly prevent business immigration reform from happening. It should be noted that both Senators are Republicans and senior members of the Senate so this type of public exchange is a bit unusual. The back drop of this discussion is the upcoming April 1st H-1b cap lottery filing deadline at which, literally 1000’s of professionals, many of them with U.S. graduate degrees, hired by U.S. employers, will be rejected and told that their services are not wanted in the U.S. Last year, over 85,000 professional workers were rejected and many think this year, there will be even more. The 85,000 rejected workers would’ve been tax-paying productive workers and as countless economic studies have shown, H-1b workers serve to create U.S. jobs, not eliminate them. The continued insistence by politicians such as Senator Grassley, on building walls, rather than building the American economy remains troubling. The foreign outsourcing industry is grateful for his efforts though.
At long last, the DHS has published the final rule (regulation) allowing certain H-4 holders to apply for an EAD card. Eligibility requires the H-4 holder’s spouse to have an approved I-140 or to have already been approved for a 7th year extension under the AC21 rules. The rule goes into effect on May 26, 2015. Applications may not be filed early.
There might be a shakeup in how USCIS adjudicates educational equivalency. Lately, there had been a trend of Officers cracking down on degrees that were not “in-line” with the beneficiary’s proposed specialty occupation. In Raj and Company v. USCIS, the U.S. District Court for the Western District of Washington at Seattle bucked this trend and recently found that the position of “market research analyst” met qualifications as a “specialty occupation,” stating that the regulations do not “restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.” Further, the position required as a minimum for entry a specialized degree in “market research,” or where no such degree is available, an equivalent technical degree accompanied by relevant coursework.
However, this will not lead to a free-for-all to anyone with a bachelor’s degree. The Court noted that the patently specialized nature of the position sets it apart from those that merely require a generic degree i.e. when employers are not particularly concerned with what type of bachelor’s an applicant has achieved. It is a positive turn of events that the courts understand that there is not a specific degree for every position.
As many of you read earlier this week, a Federal District court issued an injunction barring the implementation of portions of President Obama’s Executive Action. The Court’s ruling was based upon the Administrative Procedure’s Act (APA). It is not believed that the Court’s ruling will have any impact on the business measures announced by President Obama. The reason, is that the business measures were not being implemented by decree but, were directives to issue regulations consistent with the APA. We fully expect the regulatory process started by the President’s Executive Action to continue in spite of this injunction.