We hope that many of our clients are enjoying Staffing World in Las Vegas, the annual event sponsored by the American Staffing Association. On the occasion of the event, staffingtalk.com caught up with Steve Wynn and got his take on the upcoming election and the potential impact to U.S. business and job growth.
Last week, Congress did what it does best; it played political games with legislation that by all accounts has broad bi-partisan support and if economists are correct, would’ve led to U.S. job growth. The Republicans in the House put forth STEM legislation but tied it to the elimination of the green card lottery, a pet program favored by Democrats because in theory, green card lottery winners are projected to vote Democratic after they naturalize. The Republicans justified the proposed trade of more STEM workers for the elimination of what has generally been lower skilled and poorly educated workers by arguing that with the current unemployment rate for lower skilled jobs staying high, their measure would serve to not further add to an already tight job market. The Democrats didn’t buy the argument or at least only 30 of them did and not enough to pass the legislation. Many Democrats believed that the Republicans put forth the legislation as a campaign tactic knowing that the Democrats would not support the bill. Shocking ! The bottom line is that, at least for now, STEM legislation is dead. It can certainly be revived and in politics, the landscape can change quickly but, with major tax and budget issues facing Congress when they return after the November elections, it doesn’t look promising for passage of STEM legislation in 2012.
The Board of Alien Labor Certification Appeals (“BALCA”) issued a decision on May 21, 2012 that provides guidance on choosing an appropriate newspaper to advertise in as part of the recruitment process of labor certification when the position is in a rural area. In Matter of Michigan Technological University (2011-PER-00790), the employer filed a PERM application for the position of Lecturer in Houghton, Michigan. As part of its recruitment, the employer placed two Sunday ads in the Green Bay Press Gazette. The employer believed that this newspaper was more appropriate than the Houghton Daily Mining Gazette because the Houghton newspaper does not have a Sunday edition and only has a circulation of 10,500 during the week. The Certifying Officer denied the application because it determined that the Green Bay Press Gazette is not “a newspaper of general circulation in the area of intended employment.” BALCA reviewed the regulations at 20 C.F.R. § 656.17(e)(i)(B)(2), which state that if “the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment.” It determined that an urban newspaper, like the Green Bay Press Gazette, may be the appropriate newspaper to use if “the employer can show that it is more widely circulated in the area of intended employment than the local newspaper.” Since the employer did not demonstrate that the Green Bay Press Gazette was more widely circulated in Houghton, MI than the Houghton Daily Mining Gazette, BALCA upheld the denial. This case provides welcome information on how to select an appropriate newspaper that will meet the requirements of the labor certification process.
Our friend and fellow immigration attorney, Greg Siskind, reported on the systematic and consistent under-counting by the USCIS of H-1b cap cases over the past 4 years. The USCIS “mis-counted” by almost 15% for a total of 45,000 H-1b cap visas authorized by Congress but, not processed by the USCIS ! For the U.S. employer who lost a project or was forced to outsource a project overseas due to the H-1b cap being reached, you can now feel worse about the situation. We are anxiously awaiting reaction from the USCIS but, to date, there is only silence.
On September 19th, Senators Charles Schumer (D-NY) and Chris Coons (D-DE) plan to introduce a new bill before the Senate. The so-called “BRAINS Act” would create a two-year pilot program that would allocate an additional 55,000 green cards each year for foreign-born graduates who have a master’s degree or higher from an American university in science, math, technology, or engineering (“STEM”). To be eligible, the graduate must meet three criteria: (1) have received a master’s degree or higher from an eligible U.S. university in a STEM field, (2) have an offer of employment in the U.S. in a STEM field, and (3) be petitioned for by an employer who has gone through labor certification and can show that there are no available U.S. workers. Senators Schumer and Coons believe that this act will “fix a long-existing problem in our visa system that, despite the worsening shortage of highly-skilled tech workers based in theUnited States, forces many of the world’s brightest students to return to their country of origin, taking with them any economic growth and jobs they might create.” The bill will also permit any unused green cards from this program to be used to reduce the backlog for employment-based green cards for STEM graduates from foreign universities. This bill is promising. It would provide an enormous benefit to foreign-born graduates from U.S. STEM programs while also enhancing the U.S. economy. Given that there remains very little time in this session of Congress, it is unclear whether this bill will have sufficient time to make it through Congress before the session ends.
The DOS has released the October Visa Bulletin and the news is discouraging. The India EB2 category was set at Sept. 1, 2004 although predictions had been made that it would be in 2006 or 2007. The EB3 category for the Philippines did not move at all. Instead of returning to current like expected , the EB2 category for the Philippines and all others was set at Jan 1, 2012. We are hopeful that this type of “movement” is not indicative of what can be expected in fiscal year 2013.
The United States Embassy in India has announced that it is implementing a new visa processing system throughout India that will further standardize procedures and will simplify fee payment and appointment scheduling through a new website at www.ustraveldocs.com/in.
Beginning September 26, 2012, U.S. visa applicants will be able to pay application fees via Electronic Fund Transfer (EFT) or with their mobile phones. They can also pay in cash at more than 1,800 Axis bank branches.
For the first time, applicants will be able to schedule their appointments online or by phone. The new system will also allow companies and travel agents to purchase multiple fee receipts for group travel, and it accommodates the scheduling of group
and emergency appointments.
Visa applicants will be able to have their questions answered via telephone, email, or online chat. Call center agents in Noida and Hyderabad will answer questions in Hindi, English, Punjabi, Gujarati, Tamil, and Telugu. Call centers will be open 8:00 am to 8:00 pm Monday through Friday, and 9:00 am to 6:00 pm on Sunday. The numbers are (91-120) 660-2222 or (91-22) 6720-9400 in India or 1-310-616-5424 in the United States. Applicants will also be able to email in English or Hindi at firstname.lastname@example.org.
Second Appointment Required
One important change is that under the new system, applicants will have to make two appointments. Prior to their visa interviews, applicants will have to visit an Offsite Facilitation Center (OFC) to submit their fingerprints and a photo. Located apart from the Embassy and Consulates in Delhi, Chennai, Hyderabad, Kolkata, and Mumbai, the OFCs will reduce congestion at U.S. consular facilities and speed applicant processing. Most applicants will need to visit an OFC only once.
This changes on the heels of the introduction in March of the Interview Waiver Program (IWP), which allows applicants who meet certain criteria to be considered for waivers of personal interviews. The US Embassy indicates that with the addition of the new processing system to the IWP program, an increasing number of applicants will be able to complete all visa requirements without having to visit a U.S. Embassy or Consulate at all.
Earlier this week, the DOS provided additional information on priority date movement in the new fiscal year which starts Oct 1. The following items were noted about visa usage and demand:
- Employment Based (EB)-1 visa usage is extremely high. August 2012 was at a near record high. The Visa Office is uncertain why the demand increased.
- EB-2 India priority date will probably go to 2006 when the Visa Bulletin is published next month (not 2007 as previously predicted). This is due in part to the retrogression in 2012, as well as the high level of EB-1 usage. India is expected to stay in 2006 for awhile. It could even fall back to 2005, but that does not appear likely right now. However, slow movement in this category is expected throughout most of FY2013.
- EB-2 China priority date should be further ahead than India, but that assessment has not been completed yet.
- EB-2 worldwide may go current in October. Alternatively, it may go to early 2012 and then current in the November Visa Bulletin. Delaying movement until November is prefered by the Visa Office because they are expecting many EB-2 worldwide cases to be pending or filed in October and slowing the usage could help predict usage for the rest of the year. It is possible that EB-2 worldwide would then retrogress (again) towards the latter part of FY2013.
- EB-3 worldwide is expected to progress steadily in FY2013, unless there is heavy usage in EB-1 and EB-2 usage in FY2013, which would slow the speed of EB-3 worldwide but not completely halt it or retrogress it.
The State Department reiterated that it is problematic to predict demand as USCIS is not providing real time data on EB-3 to EB-2 “upgrades” and the Visa Office is also seeing a significant number of EB-2 to EB-1 “upgrades.” “Upgrades” continue to be a big “wildcard,” as no one knows how many are being used per month. We will keep you updated as further information becomes available.
Recently, the AILA published a practice advisory to its members recommending that we advise our clients to file an amended H-1b petition whenever there is a change in the work site. This advice derived from a series of interactions with the CSC who asserted that an amended H-1b petition was necessary whenever there was a work site change. Anecdotal evidence suggests that the CSC policy has been applied in H-1b extension petitions, I-485 applications, and H-1b revocation cases from both U.S. Consulates and FDNS site investigation referrals. AILA has urged USCIS HQ to address this very critical issue. Many of us believe that the revised I-129 form (issued in late 2011) with its clear language requiring the employer to attest to the statement, “If the beneficiary is assigned to a position in a new location I will obtain and post an LCA for that site prior to reassignment” had settled this matter but, based upon recent events, it did not, at least not in the eyes of the CSC. A memorandum from HQ would be nice but, since the CSC routinely ignores HQ directives eg. Neufeld FAQ’s, L-1b specialized knowledge definition, etc. it may be no more helpful than an umbrella in a hurricane.