In what has become a holiday tradition, a government agency has announced a fee increase. This time the DOS has published a new schedule for fees applicable to visa issued at Consular posts. If only we could be assured that the Post would apply the law, paying increased fees would not be so bad but, alas, that is but wishful thinking on our part and as likely to happen as Santa coming down a chimney delivering presents !
Last night, the U.S. House of Representatives passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by an overwhelming vote of 389-15. This bill would change the way employment-based (EB) green cards are allocated by eliminating the per country quotas. If the bill becomes law, it will equalize the waiting times for employment based permanent residence, which would result in significant advancement in EB green card availability for India and China. Unfortunately, it would also create retrogression for persons from other countries, specifically those in the EB2 category, who now enjoy a “current” status. The seven percent limit per country would be eliminated by 2015. Instead of separate queues for each country in each employment based green card category, there would be eventually be a single queue for each employment-based green card category.
Until 2015, per-country limits on green cards would still exist, but a certain number of immigrant visas would be immediately allocated to India and China and away from other countries. As a result, priority dates for India and China would quickly advance in the EB-2 and EB-3 categories. However, for other countries EB-2 could retrogress and EB-3 could see further retrogression. By 2015, the EB-2 and EB-3 categories would all be backlogged, but there would be a single priority date for all countries in each category.
Although, certainly not a perfect solution, this bill is a step in the right direction and corrects one glaring defect in the employment based green card system. It is hoped that the positive reaction that this bill received in the House would motivate other immigration bills including: special treatment for STEM and Schedule A occupations, an overall increase in the level of employment based immigration, the elimination of counting dependents toward the overall EB quota, a re-capture of unused immigrant visa numbers from prior fiscal years, and/or a market based approach to the H-1b quota. As this bill is considered by the Senate, it is hoped that further positive amendments could be added.
The bill will not become law until it passes the Senate and is signed by the President. We expect the Senate to take up this bill soon however, no time table has been set. We will keep you updated as developments occur.
With the H-1b quota exhausted last week, my morning has been filled with stories like; We promised this person a job and they have already planned on moving ? But, this project depends upon me getting this new candidate on board ? I already promised the client ? All of these questions, can be summed up by “now what?” For many situations, unfortunately, there may not be any viable alternatives however, each case should be analyzed to determine if there are options available. The following may be viable scenarios: 1. Make sure your candidate is not cap-exempt by virtue of a prior H-1b, maybe even many years ago 2. Consider alternative visa options such as the O or L 3. Consider whether your candidate can extend their OPT via a STEM extension 4. Consider whether your candidate can return to school and be authorized for employment under a CPT program 5. Consider the spouse of your candidate and whether or not their occupation offers any options for employment eligibility 6. Consider any residency options 7. Consider off-shoring your project until Oct 2012 In addition, make sure you contact your esteemed member of Congress and let him or her know the negative impact the H-1b cap has on your business. They will not listen but, you will feel better by making the effort.
Also, keep in mind that many H-1b petitions are not subject to the H-1b cap. These include: 1. H-1b extensions for your own employees 2. H-1b transfers i.e. new employees joining you who currently have an H-1b with another company 3. H-1b petitions filed by cap-exempt organizations 4. Persons who have previously been counted under the cap and not yet exhausted a full 6 years in the U.S.
Filings for Fiscal year 2013 can be mailed in only 124 days !
Recently the NFAP released a report based upon data received from the Department of State that showed visa approvals for multi-national cos. from India had declined in 2011 by almost 30% while during the same time-frame, the approvals for non-Indian based cos. had risen by over 15%. At a time when the U.S. economy needs job growth and a larger tax base and President Obama is regularly promoting the need for our immigration policies to encourage international commerce and entrepreneurs, it is most unfortunate that the US Consulates in India have chosen to ignore the directives of President Obama and instead apply policies that require Indian owned cos. to go above and beyond the requirements imposed under exisitng law and legal precedent and essentially meet “super-tests” to achieve approvals. One could charge racism and discrimination or the advancement of isolationism but, frankly, I’m of the opinion that the real issue is a culture that is pervasive at the US Consulates and the USCIS Service Centers which permit officers to modify their roles from adjudicators into policy-makers and as a result, they have elevated their own policies and prejudices over that of the positions of President Obama, USCIS Director Mayorkas, and Sec. of State Clinton, and to anyone who cares about the rule of law, even more importantly, over the laws enacted by Congress and the case precedents established by Federal Courts. Unfortunately, the notion that government agencies should follow the law is a foreign concept today to the detriment of the US economy.
The Department of State has released the December visa bulletin and EB2 India and PRC dates have surged ahead to March 15, 2008. This is a movement of over 4 months from the November bulletin and an almost 2 year improvement over the December 2010 bulletin. In spite of dire warnings from the DOS that a slowdown of movement and even possible retrogression is in store for the EB2 category, at least for now, there are smiles all around.
In spite of all the rhetoric coming from the White House on increasing entrepreneurial opportunities in the U.S. for immigrants that create jobs for U.S. workers, the opposite is the reality, as this case reported by ABC News illustrates. One must wonder, who is in charge of U.S. immigration policy ? President Obama certainly isn’t ! Right now, the hard line restrictionists led by the esteemed Senator Grassley and his cohort, Senator Durbin would be proud of the closed door policy and culture of NO that this administration has achieved.
This week, Mike Hammond will be attending the TechServe Alliance Annual conference in Az. He will be a speaker on a panel entitled, “At Your Own Peril: A Panel Discussion on the Key Legal Issues Confronting the IT Staffing & Services Industry” moderated by the CEO of TechServe, Mark Roberts. If you are going to be in attendance, please attend this session.
The USCIS has announced that the 20,000 quota allocated to graduates of US Master’s or higher degree programs for H-1b visas has been reached as of 10-21-2011. There are also less than 20,000 left in the regular quota and there has been a recent marked increase in the number of new filings. If the current pace continues, the cap will be reached in Dec, several months ahead of projections from only 30-45 days ago.