A recent report issued by the Institute for the Study of Labor in Bonn, Germany compared H-1b employees to native workers in regards to age, salary, and education level. This study, called H-1bs: How do they stack up to US Born Workers, noted that the H-1b visa system is often criticized for harming opportunities for native workers and allowing employers to take advantage of H-1b employees. However, the study found that H-1b workers on average are younger and more highly educated than U.S. born workers. In addition, they earn a salary that is comparable, if not higher, than the amount earned by native workers. To reach these conclusions, the authors obtained data on individuals from USCIS for 2000 to 2010 through a Freedom of Information Act request. This data was compared to the information provided about U.S. born workers in the American Community Survey: 2009. The report confirms that H-1b workers come to the United States with an advanced level of education, earn high incomes, and participate meaningfully in the U.S. workforce.
The DOS recently published a final rule changing the way it would determine the validity dates it would issue for an L-1 visa. L visas will now be issued with validity periods based on the visa reciprocity schedule. The prior rule limited L visas to the petition validity period, as shown on the I-797 approval notice issued by the USCIS.
Don’t believe the rhetoric that is coming from USCIS officers and the corn fields of Iowa claiming that immigration officials are being too lenient and being pressured into issuing unwarranted approvals. The truth lies in the numbers. A recent report from the NFAP, provides facts (those are statements that are true and not inventions of one’s mind) about the denial and RFE rates experienced by employers trying to petiton for H-1b, L, and O workers over the past few years. While the White House advocates for an immigration policy that attracts and retains highly skilled professionals and entrepreneurs and the DHS issues press releases touting its efforts consistent with that policy, the rank and file USCIS officers are beating to a different drummer. The facts don’t lie, even if they don’t play well in the heartland.
Several HLG attorneys attended the DHS Ombudsman open forum on L-1b petitions. At some point in the future, an official summary will be posted on the Ombudsman web-site. Until then, below are some items of interest. The DHS acknowledged that there has been a tremendous narrowing of the interpretation of the definition of “specialized knowledge” without any statutory or regulatory changes. The denial rates for L-1b petitions have now risen to 27% whereas, it had never exceeded 7% prior to 2008. The rate of denials is much higher for IT petitions. The RFE rate has now reached over 66%. The DHS also acknowledged inconsistent treatment of petitions between the 2 service centers with the California Service Center having higher denial rates. It was speculated that the standard being used by the service centers stems from a 2008 AAO case, GST which many scholarly experts have posited is possibly the most legally defective decision to ever be issued by an administrative law judge. The essential point of the GST opinion was that “if everyone is specialized, no one is specialized” Although, the merits of this policy remain without legal support, the reality is that this is the current policy being applied by the USCIS. The Ombudsman office acknowledged that new training materials were provided to the USCIS in Oct of 2011 however, to date, the USCIS has refused to release those materials. The Ombudsman office re-affirmed that new L-1b guidance was being developed by USCIS headquarters however, no timetable was provided for the release of such guidance. Overall, it was an excellent session and it was heartening to have a DHS official listen and accept input from stakeholders. We applaud the efforts of the Ombudsman’s office and look forward to closer scrutiny of the USCIS service centers treatment of L-1b petitions.
Earlier this week, Senator Schumer (D NY) attached a bill that would allow up to 10,000 E3 visas for nationals of Ireland under the same rules currently utilized by the Australian E3 program. The measure has been hotlined in the Senate which typically means it will move faster and has a greater likelihood of passage. Of importance to everyone outside of the emerald isles is that this measure is attached to S1983 which is the Senate version of HR3012 which would eliminate the per country immigrant visa limits and would have a huge impact on nationals of India and China. HR3012 passed the House overwhelmingly by a vote of 389-15 in a show of bi-partisanship rarely seen in this Congress but, when the bill arrived in the Senate, one man, Senator Grassley put a stop to it. It is not know whether Senator Grassley will continue to try and stop this bill in its current form, and if so, whether there are enough votes in the Senate to overcome his opposition.
As part of President Obama’s public claims to foster legal immigration and encourage entrepreneurship, the DHS announced several planned reforms to achieve these goals without the need for legislative action. We applaud the goals of the administration and these planned reforms and just hope that the culture of no which so permeates the agency at the service center levels are not able to quickly thwart the Preseident’s plans in much the same way that Senator Grassley and his cohorts in Congress would most assuredly stop these reform measures if Congressional action were required.
On January 23, 2012, the United States Court of Appeals for the Third Circuit issued a decision in Edwards v. Geisinger Clinic. In this case, Dr. Philip Edwards, a licensed physician from the United Kingdom, argued that the at-will employment clause in his employment agreement with Geisinger Clinic was not valid. Instead, he stated that this contract guaranteed that he would remain employed by the Geisinger Clinic for at least three years because this was the time requested by the Geisinger Clinic when it petitioned for his H-1b. The Third Circuit rejected this argument. It noted that “sponsorship of an H-1b visa alone does not imply that the employer-sponsor has guaranteed employment for the visa’s duration.” Thus, an organization that sponsors an employee for an H-1b does not have a duty to employ the beneficiary throughout the duration of the H-1b validity period. Dr. Edwards other arguments also failed and the Third Circuit dismissed this appeal. The immigration effects of having an at-will employment agreement versus an express employment agreement can be crucial. The Hammond Law Group is always happy to help explore this topic.
On December 20, 2011, the Administrative Review Board (“ARB”) of the Department of Labor decided In Matter of University of Miami . In this case, the University of Miami submitted a petition for a H-1b worker who would perform as a clinical anesthesiologist. When the doctor arrived in the United States, the University of Miami told her that she must obtain a social security card before beginning employment. The doctor received the social security card and informed the University that she was ready to begin working. Due to issues regarding the offered position, the doctor’s employment was terminated. However, U.S. Citizenship & Immigration Services (“USCIS”) was not notified for more than four months. The ARB determined that the time that the doctor spent trying to obtain a social security card was involuntary non-productive time. Consequently, the University was ordered to pay backpay for this period. In addition, the ARB stated that the doctor’s termination only became effective on the date that USCIS was notified. Thus, the University was also liable for backpay from the date of actual termination until the date that USCIS received notification. This case should remind all employers that they risk being held liable for backpay if they create requirements that an H-1b worker must fulfill before starting work and if they fail to alert USCIS to a H-1b worker’s termination. If you have any questions regarding these types of issues, please contact the Hammond Law Group.
In several circles, the recent AG report which we discussed on Jan 4th and Jan 16th, has derisevely became known as the Grassley Report. In part, because Senator Grassley himself commissioned the report but, more importantly, and sadly, because it is a report that is so flawed in methodology, that if it were not a government product, it would be considered worthless. Senator Grassley is well known for his xenophobic policies and his stances that prevent legal immigration from flourishing but, that’s a political position, and although I may disagree with such a position, I certainly support his right to hold and advocate for those positions. I presume that many of his constituents in Iowa share in those same beliefs. What is disheartening is that his political policies and his esteemed position as a US Senator have allowed him to manipulate various government agencies into creating policies and reports that start with the desired conclusion and then build upon half-truths, poor survey methodology, definitions devoid of any support in the law, and other tactics until, presto ! We have a damning report or memorandum that serves his political purposes. If only his talent at mudraking could be put to better use. For another opinion on this report, check out a recent post from the AILA leadership blog.