Lost in the President’s plan to provide relief to millions of undocumented/illegal people here in the US were major changes that will be hugely positive for H-1b workers and employers alike. A summary will be posted later today and more details provided as they become available but, the highlights include: the end of retrogression for US based workers (well, almost); elimination of the need for most h-1b extensions; in many cases, the advantage of being EB2 vs. EB3 would be eliminated; clearer L-1b rules; and, greater portability for H-1b workers which means easier access to resources for US employers. Nice job Mr. President !
Recently, President Obama made remarks indicating that he wanted to make the H-1b program more efficient as part of the Executive Action that he has promised to deliver in light of Congressional inaction on immigration reform. His remarks immediately drew the ire of Senator Grassley who opined that the H-1b program should have a labor market test attached to it. In typical form, Senator Grassley falsely claimed that US companies lay off US workers in mass and then replace them with cheaper H-1b workers. It should be alarming to all advocates of legal immigration and business immigration reform that Senator Grassley would be the top Senator and carry tremendous weight over any immigration bill should the Republicans take control over the Senate. Hopes of U.S. companies being able to hire and retain the best and the brightest will be destroyed by a strong wind blowing from the corn fields of Iowa should the Senate change hands in the November election.
The DOL has published new prevailing wages which can be accessed at the FLCDatacenter. The new wages went into effect July 1st. These wages are the source used by the DOL in issuing prevailing wage determinations (PWD’s) utilized for PERM applications and certain other immigrant petitions. This on-line data is also commonly used by employers in determining the prevailing wage for H-1b petitions.
The Department of State has informed the American Immigration Lawyers Association that due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts in Canada are extremely limited in their ability to accept Third Country National (TCN) cases during the peak demand months of June, July, and August. Visa processing those individuals will be suspended during this time.
A Third Country National is a non-Canadian citizen who is not currently a resident of Canada and wants to obtain a visa to the US from a US consulate in Canada. This often involves foreign nationals living in the US who do not want to return to their home countries for visa stamping and instead want to go to Canada to update the visa stamps in their passports.
The Department of State is encouraging such applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.
Cases already scheduled for appointments will be completed as scheduled.
The WSJ ran an interesting article explaining how the employment of H-1b workers actually serves to increase the wages of their US citizen colleagues. This study appears to be in direct contradiction to the propaganda spouted at the dog and pony show put on by Senator Sessions a few weeks ago.
Senator Sessions (R-Ala) a long-time and outspoken opponent of the H-1b visa and any increase in the H-1b quota or an increase in legal immigration, hosted a policy discussion last week to denounce any increase in the H-1b cap. The premise of the discussion was that there were plenty of unemployed US workers with STEM degrees who were being bypassed for cheaper H-1b visa holders. Check out the summary of the arguments being made.
Earlier this week, the Department of Homeland Security published the proposed rule which among things would allow certain H-4 holders to obtain EAD cards. H-4 holders would be permitted to file for EAD cards if 1 of 2 conditions are met by their H-1b spouse:
1. Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
2. Is eligible for an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit under certain scenarios.
The proposed rule also covers other topics. Comments to this proposed rule are due by July 11th and our firm, on behalf of our clients, will be submitted official comments. You may also submit electronic comments on this proposed rule.
The DHS issued a press release yesterday announcing a new proposed rule which would allow certain H-4 holders to obtain an EAD card. In essence, the proposed rule will allow H-4 spouses to be issued EAD cards when the principal H-1 holder has an I-140 approved or is 7th year extension eligible under AC21. The rule is not in effect now but, will go through the formal rule-making process which can often take many months. We will update you after the proposed rule is published.
USCIS recently released a 48 page California Service Center (CSC) L-1B denial template in response to a Freedom of Information Act (FOIA) request from the American Immigration Lawyers Association (AILA). The 48 denial template covers every conceivable way to deny an L-1B petition, whether or not supported by law, and even includes the kitchen sink. Although a few of the pages do in fact cite to the immigration regulations, the vast majority of the template is cookie cutter, cut and paste and insert here. This includes guidance to the adjudicator to [Insert name of petitioner] and [Insert CBP analysis of why petitioner/beneficiary failed to establish eligibility]. One of the many problems with this type of large template is that too much cut and paste and [insert here] leads to laziness, intended or not, on the part of the adjudicator. Ultimately, what we have seen in practice is that even after a comprehensive review of the denial, we are unable to determine exactly why the petition was denied. Which makes it tough to draft a motion to reconsider or motion to reopen. Other times we find that the denial includes the wrong petitioner or beneficiary or discusses facts not specific to the particular case that was denied. While USCIS states that such a template is needed for consistency of its decisions, we know that in real life, no two petitions are the same and thus, no two decisions should be the same.