US Immigration Policy

H-1b Reform What’s next ? Anything ?

As the H-1b industry has absorbed the impact of the Executive Orders issued over the past month, questions arise as to what is next ? As most experts agree, EO’s have limited impact on the H-1b outside of a chilling effect on employers and workers alike, and though this should not be diminished as insignificant, big changes that may last for decades can only come through legislative change. A nice summary of where we stand at present and what might be coming was published in Computerworld last week. Check it out here.

Calculating Your EB Experience Time

On April 17, 2017 an immigration policy memorandum was issued by the Service adopting “Matter of O-A- Inc.,” a copy of the memo can be found here, as a guidepost for USCIS decisions going forward. This case was focused on whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree.

In this case, the beneficiary’s provisional certificate was issued May 17, 2006, but she did not receive her formal diploma until March 30, 2007, according to the decision. The priority date was Oct. 23, 2014. The director concluded that the beneficiary fell short of the five-year requirement because she accrued four years and eight months of qualifying experience between the diploma date and the priority date, but the agency said that, based on the evidence in the record, the issuance of the provisional certificate conferred the foreign equivalent of a U.S. bachelor’s degree. And the agency found that she had obtained at least five years of qualifying post-baccalaureate experience.

It was determined that the provisional certificate, together with the beneficiary’s statement of marks, showed that she had completed all the substantive requirements for her degree and that the university approved her degree. As such, the agency determined that the petitioner had shown that the beneficiary met the minimum education and experience requirements of the labor certification and EB-2 classification and sustained the appeal.

Going forward, the Service has been directed to conduct case-specific analysis to determine whether a beneficiary who received a provisional certificate had completed all requirements to earn the degree and that the school had approved the degree at the time the certificate was issued. This is good news for those beneficiary who get their provisional certificates much earlier than their diplomas.

Attacks on Trump’s EO

The attacks on Trump’s new EO are growing in number as people review what the EO is trying to achieve. An article in The Federalist is worth reading. Another article at SHRM.org discusses the limitations that the President has in making meaningful changes to the H-1b program without legislative action.

Buy American and Hire American

Yesterday, President Trump issued an Executive Order impacting business immigration specifically, the H-1b visa. The order makes NO immediate changes to the H-1b program but, changes they are a coming. The EO essentially makes two (2) directives. First, it orders all agencies that touch the H-1b program to review all of its policies and regulations and write new policies and regulations to further protect US workers and prevent fraud and abuse in the H-1b program. Long-term, this may result in new proposed regulations which will be the subject of notice and comment. In the next few months, this may mean more policy memos, such as the memo released in late March which changed 20 years of policy and declared that many computer programmer positions would no longer be considered H-1b level occupations. As we saw with the introduction of the Neufeld policy memo in 2010, policy memos can have a major impact on a visa category. Immediately, I think we will see an increase in H-1b site visits; DOL LCA audits; 221(g) and administrative processing by US Consulates at visa stamping; RFE’s; use of the NOID in place of the RFE; NOIR issuances; and, denials. The President is proclaiming that H-1b visas harm US workers and there is rampant fraud and abuse and by his comments and this EO, he is directing his administration to do everything in its power to right this wrong. If we thought the “culture of NO” which was pervasive during the last Administration was strong, we now expect to see the “culture of HELL NO”
Secondly, the EO requests that the agencies involved devise a new scheme to replace the H-1b lottery and award the limited pool of H-1b visas to the “most-skilled or highest paid”. The assumption being made in this EO is that the majority of H-1b visas are awarded to low paid workers. New grads from US schools make up at least 20,000 of the H-1b lottery pool and by many estimates, at least a 3rd of the lottery winners and new grads are appropriately paid at the low end of the wage scale. There are a number of problems inherent in any scheme that awards H-1b visas only to the highest paid eg. rural areas will be at a major disadvantage over large cities; some occupations such as healthcare and research will not be able to compete with even the low end salaries paid to IT and engineers; and, large companies will have an advantage over start-ups.

Contrary to the “Buy American” provisions in this EO, there were no timetables set for the immigration related provisions.

The reaction to the President’s EO came quickly with most declaring this is nothing more than chest thumping and a horrible solution in search of a problem. One prominent immigration attorney quoted MacBeth (surely you know the line) and I must admit I responded to an email yesterday about this subject by sending back a pic of a person blowing hot air however, as I outlined above, this will have ramifications. There is no question that we need immigration reform but, it needs to be legislative in origin and needs to be based upon facts and not mere anecdotes tainted by either fear or hatred of immigrants.

And the attacks keep coming

On Monday, the USCIS announced new enforcement measures aimed at “cracking down on abuse in the H-1b program” In this announcement, they specifically targeted the staffing and consulting industry declaring that there is more likely to be fraud and abuse in situations where there is a 3rd party placement. They also expect to target small and new employers as they will often not show up in the VIBE database. Lastly, they also plan on targeting dependent employers. On the heels of the declaration that computer programmers may not qualify for the H-1b visa, there should be no doubt that the high tech industry is clearly in the cross-hairs of the Trump administration. If you happen to be an IT company that places people at 3rd party sites and you haven’t done an internal audit of your H-1b placements, Public Access Files, or procedures in a while, now is the time to do so. Even more troubling than the targeting of a specific industry is that the examiners will enter any site investigation with a pre-conceived notion that there is fraud and abuse. It is always tough to get a fair hearing when the judge believes you are guilty before any facts have been brought to light. Welcome to 2017 !

TechServe Alliance Defends the H-1b visa

In the face of recent attacks, which have portrayed the H-1b visa as a blight on the highly skilled but, unable to find employment U.S. worker; Mark Roberts, CEO of TechServe Alliance pens a well thought out article which describes the need for access to talented workers, defends the proper use of the H-1b visa, and, implores those legitimate users of the H-1b visa to not let your voice go unheard. There is no question that there is some abuse of the H-1b visa program but, Congressional studies commissioned by none other than the H-1b hater in chief, Senator Grassley have proven that said abuse is negligible. The IT and engineering industry will be proponents of well thought out H-1b reforms that provide for protection for the US worker and wages, while at the same time providing timely access to talent that is consistent with the fast paced demands of U.S. employers competing in a global marketplace. For Congressional reforms to be meaningful, they will need to cut through the rhetoric of fear and hate and be led by those not so easily influenced by the 1 in 1000 but, by the 999.

Rough week for H-1b visas

The week started with a 60 minutes news segment and now a Bloomberg article. Many expect the increased and widespread negative publicity to accelerate the consideration of legislation to make sweeping changes to the H-1b visa. Senator Grassley wasted no time in jumping on the opportunity to push his proposed bill. However, as we have seen with healthcare, a campaign slogan does not always equate to legislation being passed.

Shooting of H-1b workers saddens and stirs fear

The shootings of two H-1b engineers near Kansas this past week, resulting in the death of one of them has saddened and stirred fear among the Indian community. We offer our condolences to his family. Many are quick to link this shooting to the nationalistic and inflammatory rhetoric which has become commonplace since President Trump began his campaign and has continued since he took office. The White House was quick to deny any link. India’s Foreign Secretary, S. Jaishankar will be in the U.S. this coming week for an official visit and has pledged to discuss this incident.

H-1b Visa News

During a time when the H-1b visa is under seemingly constant attack, at least one Senator thinks we need an expansion of the program, along with greater US worker protections. Get an update on Senator Hatch’s plan from CIO.com

More Travel Ban News !

Lots of updates recently, but, here is the latest announcement from AILA National on the expansion of additional countries to the list “Contrary to rumors apparently circulating, AILA National has no confirmation of additional countries being added to the travel ban. The executive order anticipates that additional countries could be added. Clearly, it is impossible to guess where, when, or how the president will use this authority” We will continue to keep you updated as developments occur. AILA has created a AILA public page to post breaking news on the travel ban.

Another update, late this afternoon, the DOS released an DOS emergency travel alert providing assurances that persons with dual nationalities wherein one nationality was subject to the ban but, another nationality was not; would not be considered subject to the ban.