Once again, the USCIS is publicly pretending to be the friend of entrepreneurs, investors and specially skilled foreign workers while the culture of NO remains deeply ingrained at the Service Centers and at the US Consulates. In announcing the “Entrepreneurs in Residence” program, Director Mayorkas, has once again put forth the right message. Unfortunately, his own agency is not on the same page, honestly, they are not even in the same library. It is time for the Director to stop creating new initiatives and clean-up his own house.
As reported a few weeks ago in Federal Computer Week, the Social Security Administration (SSA) released a study that drew the conclusion that a significant percentage of H-1b holders did not fulfill the purpose of the H-1b. The SSA specifically pointed to persons who received wages from an employer, other than the H-1b sponsor and another group of H-1b workers who received no wages at all. The findings are interesting however, the conclusions are at best dubious without more information. Of those H-1b holders who did not earn wages, how many remained in the U.S. ? During the period of time studied, the U.S. economy was in the middle of a fairly large recession and many H-1b workers returned overseas to work for the overseas offices of their international employers. Many others were simply laid off and returned home with the hope that when the economy improved, they could return to the US on their valid H-1b visas and resume employment. In addition, it is a common practice among larger employers to file for H-1b workers that may be needed on a US based project on a sporadic basis but, due to factors such as the H-1b quota, a draconian interpretation of the L-1 visa, and the complete bastardization of the B visa, the H-1b is the only vehicle available to insure that a key employee can be brought to the U.S. when needed. Were any of these factors considered by the SSA ? As for H-1b workers who received wages from an employer not approved by the USCIS, I can think of numerous scenarios under which an H-1b holder may work for an employer not approved by the USCIS. How about persons who are using the portability rules and transfer to a new employer while the I-129 petition is pending ? Or a person who changes employers while using an EAD after their I-485 has been pending for more than 180 days, commonly referred to as an AC21 transfer ? Or how about the common scenario of a corporate merger, acquisition, name change, or re-ogranization where no new I-129 is required but, only an update of the LCA files ? Or how about the scenario when an employer starts using a payroll processing company or other BPO which results in pay stubs and W-2′s being issue under another name than that of the employer ? (This one always seems to stump the USCIS so don’t feel so bad SSA, you are in good company.) Maybe all of theses scenarios were considered but, based upon the past history of other reports on the H-1b program, I doubt it.
This week, the DOS released the November Visa Bulletin and the dates jumped once again for EB2 India and Chinese nationals but, remained painstakingly slow for all others. The National Foundation for American Policy recently released a study in which it calculated that the wait in the EB3 category had reached 70 years for Indian and Chinese nationals. Yes, that says 70 !
Many IT Consulting cos. allow workers to telecommute and work form home instead of going into the office or a client facility each day. Unfortunately for H-1b workers, this practice poses a significant risk. Recently, several US Consulates in India have denied H-1b visas for H-1b workers who indicated that they were being permitted to perform part of their work remotely from home. It was reported that one Consular official commented, “if you can work from home, you may as well stay here in India and work” Although there is no legal basis or authority for a visa refusal on these grounds, the concept of legal basis or authority is often unrecognized at US Consulates particularly in India and Manila.
You have the perfect L-1b case. Your employee has worked for your Indian office for over 100 years; he invented the proprietary tool that your company now uses all over the world; he is coming into the US to your wholly owned subsidiary to train US workers on how to use this proprietary tool so they can add US jobs in a blue state; and, he will not even look in the direction of any 3rd party worksite. Your company just got the USCIS to approve a blanket L petition for you. He is well prepped for the visa interview. You are so confident, you have even started to fix some namkeen snacks for his arrival ! DENIED ! DENIED ! DENIED ! This unfortunately, is standard operating procedure for the US Consulates in India considering L-1b blanket visa petitions and the USCIS adjudicators reviewing L-1b individual petitions. In spite of public statements from USCIS Director Mayorkas and claims by President Obama about welcoming arms for immigrant innovators and entrepreneurs, the ugly truth is that Indian innovators and entrepreneurs are about as welcome in the US right now as Al Gore would be at a Coal Mining convention. It is time for the speeches to end. Indian innovators and entrepreneurs deserve better. At some point along the spectrum of adjudicators and bureaucrats, someone needs to stand up and say, “hey guys, just for today, let’s do something crazy and unusual and follow the law !” For more on this subject, check out this great post by renowned immigration attorney Angelo Paparelli.
Slowly but surely, the DOL has once again resumed isusing PWD’s submitted to support H-1b or PERM applications. The DOL is currently procesisng PWD requests received in late June. They have released data that shows a backlog of approx. 15,000 for the months of July and Aug. The DOL has also advised that it plans to dedicate additional resources from its other product lines to deal with these backlogs. Although the curent procesisng time of approx. 90 days is 45-60 days longer than we had previously enjoyed, it is a far cry from the dire delays predicted by many in the bar. Sometimes I get the impression that attorneys like to exaggerate things to create a crisis where none exists and in doing so, we often overlook a real crisis but, maybe that’s just me.
The DOS has released the October Visa Bulletin and it shows a 3 month jump for EB2 India and China but, the movement for EB3 was less than a month and the pace remains discouraging for employers and beneficiaries alike. Included in the Visa bulletin was the DOS’s look into its crystal ball and for the EB3 category, they are predicting movement of approximately 1 month each month for the foreseeable future. More troubling was the prediction that EB2 for India and China would either stagnate or even retrogress in the future. A political solution is needed to address this ever-worsening problem of retrogression.
Recently the USCIS published a proposed regulation regarding its grand transformation plan. The stated goal of the USCIS transformation is to go paperless and create a more customer friendly environment. Although I applaud these efforts at technological improvement, the first step that USCIS should be taking toward becoming more customer friendly is convincing its examiners to follow the law that is in place and to stop acting like they are lording over a personal feifdom. When USCIS examiners stop “making shit up” and create predictability for its customers, then moving forward with a better technology platform would be a nice plus. To learn more about the USCIS Transformation, visit the USCIS site.
As we advised you in our Aug 2nd post, the DOL suspended issuing PWD’s and to date there has been no official announcement regarding a return to full service. There have been multiple reports of attorneys receiving a scattering of PWD’s last week but, it does nto appear that a full scale return to operations as normal occurred. At HLG, attorney Sherry Neal received 2 but, none of the other attys. received any. (I attribute that to her good living). Obviously, this delay has created a variety of problems for many clients which include ads expiring and having to be placed again, internal postings expiring in the Sch A context, and employees not being able to file to preserve 7th year extensions, among others. We will keep you updated as developments occur.