Recently, the Harvard Business Review published an article discussing the battle to retain US educated international STEM grads and the need for improved US immigration policies to enhance US businesses trying to retain this talent as opposed to the current climate, where US immigration policy often forces STEM graduates to offer their talents overseas.
In a surprising development, both parties in Congress stopped campaigning, posturing, and fighting long enough to actually enact legislation designed to create US jobs and spur development via the passage of the Jobs Act. At least one entrepreneur supporter/venture capitalist, Steve Case, believes that there is a connection between a legal immigration policy that welcomes entrepreneurs and highly skilled immigrants and new U.S. jobs growth and he has the facts to back up his argument. He also believes that the same arguments which resulted in bi-partisan support for the Jobs Act, may be persuasive enough to pass reforms in the legal immigration system. In his way stands Senator Grassley, the staunchest opponent of legal immigration, who like my 2 yr. old grandson, loves the word No ! However, Senator Grassley does like new jobs so there is hope that he will be able to move past his anti-immigrant leanings and support legal immigration reforms. Also, standing in the way are groups that want the issue of illegal immigration tied to legal immigration to more easily enact a type of amnesty or pathway to citizenship. Whether Mr. Case is able to overcome these major obstacles and achieve any meaningful reform is yet to be seen but, the mere fact that he is talking about it, can only be seen as positive.
Recently, the U.S. Chamber of Commerce, along with a number of large U.S. employers urged President Obama to restore the L visa program. They charge that the changes in the application of the law by the USCIS and the US Consulates in India have gutted a program that promoted international business and spurred U.S. job growth. The fact that the denial rate of L visas has increased over 300% in the past few years with NO change in the legislation or regulatory scheme is alarming. They claim that the change in the application of existing law is politically motivated and being driven by Senators Grassley and Durbin and these efforts have resulted in an increase in outsourcing of U.S. jobs and an impediment to IT job growth in the U.S.
The California Service Center and the Vermont Service Center held a joint stakeholder engagement in Laguna Niguel, California on April 5th, 2012. At this event, USCIS announced that 22,323 cap-subject H-1b petitions were received by USCIS as of April 4th, 2012. Of this number, 25 percent were submitted as advanced degree cases. As many readers might remember, 20,000 H-1b visas are available for individuals qualifying with an advanced degree and 65,000 visas can be used for all other H-1b cases. The number of cases received towards the H-1b cap should alert employers who are still considering whether to file H-1b cap cases to take action. The amount of cases received in this initial period for FY 2013 is almost twice the number received last year at this time. Employers should expect that the H-1b cap will be exhausted on a much earlier date than what occurred in the last few years. As always, the Hammond Law Group is happy to answer any questions about the H-1b process.
We knew it was too good to last and finally, the announcement has come. The DOS has confirmed that as of March 23rd, all available EB2 numbers for India and China for the current fiscal year have been exhausted. I-485 applications may continue to be filed as long as your priority date is current pursuant to the April Visa Bulletin and EAD and Advance Parole applications will continue to be processed however, cases can not be approved and permanent residency can not be granted until visa numbers are once again available. The DOS previously announced that the priority dates would retrogress to August 15, 2007 effective May 1st. As a practical matter, for purposes of adjudication (approval), the priority date has already retrogressed to Aug 15, 2007 however, for purposes of filing, the priority date will remain May 1, 2010. For many people, there remain several advantages to filing your 485 even though it can’t be adjudicated including: issuance of EAD cards for yourself and family members, issuance of advance parole travel documents for yourself and family members, flexibility afforded under AC21, elimination of the reliance on an H-1b visa and avoid the need for the ordeal of visa stamping. For IT staffing companies, there is a great incentive to encourage employees to process 485’s because in most cases, it eliminates the need for an H-1b and all of the restrictions and costs that accompany it. The DOS has published a nice document explaining how the allocation system and priority dates work in case you are curious.
In 2008, 163,000 H-1b cap petitions were received by USCIS between April 1st and April 7th for fiscal year 2009. Since only 65,000 new H-1bs can be approved in any fiscal year, USCIS faced the problematic situation of determining which cases should be adjudicated and which should be returned. USCIS used a random selection process (also known as a lottery) to choose which cases to review and rejected any cases that were not selected. As a result of this predicament, the Department of Homeland Security issued new regulations. If more than 65,000 cap-subject H-1b petitions are received within the first five business days after the first date that cap subject petitions can be submitted, USCIS will conduct a random selection process to determine which cases will be considered. Those selected will be adjudicated. All other cases will be returned with their applicable fees. What this regulation means as a practical matter, is that a case received on Thurs April 5th, is treated the same as if it was received on Mon. April 2nd.
While we do not expect the H-1b cap to be reached between April 2nd and April 6th for FY 2013, this information should be kept in mind as employers determine when they plan to file new cap-subject petitions.
On March 16, 2012, Charlie Oppenheim, Chief, Visa Control and Reporting at the Department of State, spoke at the American Immigration Lawyers Association’s Midwest Regional Conference in Chicago, IL. At this event, he noted that he will likely retrogress the dates for individuals in the EB-2 category who are from India and China to August 2007. This will probably occur in the May or June 2012 visa bulletin. In addition, Mr. Oppenheim stated that he expected that all of the visas in the EB-1 category will be used in FY 2012. As a result, there will be no spill down to the EB-2 category. For those individuals who have a pending adjustment of status and a current priority date, their case will continue to be adjudicated by USCIS. If you have a current priority date and have not yet filed your adjustment of status, we suggest that contact us as soon as possible about your case.
This week, the USCIS released revised FAQ’s clarifying portions of the Jan 2010 Neufeld memo. The original Neufeld memo declared that staffing cos. engaging in staff augmentation were not employers as that term was going to be interpreted by the USCIS. After a significant amount of lobbying by various business and legal groups, most notably TechServe Alliance, the USCIS has now modified their position. Specifically, question thirteen notes that there are situations in the consulting / staffing world that would constitute a valid employee – employer relationship. USCIS noted that adjudicators would consider the following factors in reviewing the relationship: “whether the petitioner pays the beneficiary’s salary, whether the petitioner will determine the beneficiary’s location and relocation assignments . . . , and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling.” Question five which specifically states that end client letters are not required is not a change but, has been a part of the policy since August of 2011. We are very pleased to see this guidance from USCIS. We are hopeful that the adjudicators at the Service Centers and Consular officials take note of this guidance and follow it.
The DOS has released the April Visa Bulletin and unfortunately, the movement of EB2 dates for Indian and Chinese nationals halted with dates remaining the same as the March bulletin. Historically, a month where dates remain constant indicates that the DOS may have enough demand to utilize all available immigrant visas for a fiscal year and it would not be surprising if the date stayed at May 1, 2010 or retrogressed. The EB3 category continued its all too familiar pattern of inching forward.
Read the latest BALCA decision and then openly weep for the state of our employment based immigration system. In this case, the DOL Certifying Officer denied a PERM case on the basis that the ad language stated “may require employer-reimbursed travel” instead of “some positions may require travel” and determined that US workers could be confused by such language and not be aware that travel may be required. I’m sorry but, if you are mis-led by that language, you do not deserve consideration for employment in any job. The fact that the Certifying Officer even thought there may be confusion is beyond comprehension. Fortunately, BALCA ruled in the employer’s favor and ordered the case to be certified but, the appeal took almost 2 years and the overall case has been pending for almost 4. Sadly, of the 3 government agencies most involved in business immigration cases, the DOL, in spite of decisions like this is still light years ahead of the USCIS and the US Consulates (DOS) in following the law without prejudice and in operating efficiently.