Last week, a federal judge ruled that the 17 mo. STEM extension rule which went into effect in 2008 was issued in circumvention of federal law specifically, that it was issued without the proper notice and comment required under the Administrative Procedures Act. Many in the staffing community wonder where this judge and reasoning were when the Neufeld memo and the Simeio Solutions policies were issued also without notice and comment but, I digress. The judge ordered the OPT STEM rule to be vacated but, thankfully, the effect is not immediate. The order will not go into effect until Feb 12, 2016 leaving the DHS sufficient time to issue proposed regulations and go through the proper notice and comment period. Whether the current administration will be able to achieve this in light of the myriad of other immigration initiatives they are currently tackling remains to be seen but, at this point we remain hopeful.
The Department of State has released the last Visa bulletin of fiscal year 2015. Priority dates will often retrogress or even become unavailable in the September bulletin as allocations for the fiscal year are exhausted and the EB2 categories for both India and China saw retrogression of some significance. It is noteworthy that dates continued to stay almost “current” for EB3 all other countries (ROW) and that dates actually moved forward for Philippines EB3 and India EB3. The October visa bulletin will be anxiously awaited. Legislation remains sorely needed to address retrogression and the long visa waits.
Recently, the White House released a report on modernizing the immigration system and claimed that executive action to implement some of the ideas contained in the 68 page report would be taken. Many of the ideas set forth by the Obama Administration would be welcomed by the business community.
In a letter made public recently, IBM responded to an inquiry made by Senator Grassley regarding the use of H-1b workers in light of lay-offs by IBM in Senator Grassley’s home state of Iowa. Senator Grassley has been an outspoken critic of the H-1b program and legal immigration in general so his inquiry to IBM was not surprising and, from my point of view perfectly appropriate. The spirit of the H-1b program, if not the law, should not permit H-1b workers to replace laid-off US workers. As part of their response, IBM sought to distance itself from others who heavily use the H-1b program and have a much higher percentage of H-1b workers. IBM puts its % of H-1b workers at 10% or less. In calling for an expansion of the H-1b program, IBM reminded Senator Grassley that the current limitations of the program were leading to the loss of US jobs and greater outsourcing. Given his historical position on the H-1b program, it is doubtful that Senator Grassley was in any way, swayed by the arguments being made by IBM but, it is nice to see US companies defend their H-1b programs.
As H-1b cap rejections arrived in our office en masse last week and this week, it was quite a sobering sight. Selfishly, for our firm because those rejected boxes represented literally 100’s of cases that would never be fully billed, never turn into green card cases, and never refer their friends. For the U.S. companies that had interviewed the candidates and selected them as being the best person for the job, they were losing out on a talented new employee. For the H-1b worker, many were losing out on the dream of working in the U.S., joining friends or family that may have immigrated here previously, or simply not realizing the adventure of a new career in a new country. To the U.S. in general, the rejections of some 150,000 plus professional workers, many with STEM degrees, the economic loss is staggering. CNBC ran a nice article about a month ago on the economic loss caused by a broken US immigration system. If you haven’t read it, check it out. Regardless of one’s perspective, rejected petitions represent a loss.
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.