A recent study released by the Partnership for a New American Economy found that the limitations placed on the number of new H-1b’s that are provided each fiscal year through the H-1b cap is harming the U.S. economy. After the H-1b quota was reached in the first week of April in 2013 and 2014, many companies announced that they are considering increasing their presence in other countries that have immigration systems that are friendlier to high-skilled workers. Specifically, Microsoft recently stated that it would increase its research and development sector in Canada, and plans to offer 400 new jobs in Vancouver by 2015. To contribute to the arguments that the current H-1b system is reducing the capacity of many employers to grow in the United States, a study by the Partnership for a New American Economy found that that cities where employers received a large number of rejected H-1b cap cases experienced less job creation and wage growth. It also discovered that the U.S. tech industry would have grown substantially faster in the period after the recession if such a high number of H-1b visas had not been rejected in the 2007 and 2008 lottery. Furthermore, the results of the 2007 and 2008 H-1b lottery caused the New York City / New Jersey area to lose the opportunity to create as many as 28,000 tech related jobs. Similar results were shown in the Washington, DC, Chicago, and Dallas Fort Worth areas. This study provides further support for the critical need for immigration reform.
The Department of State has released the July Visa Bulletin and if you are India EB2 or Philippines EB3, you should be ecstatic as the your priority dates jumped forward almost 4 years and 1 year, respectively. Unfortunately, no other category saw significant movement and the EB3 all other country category saw no movement.
The Department of State has informed the American Immigration Lawyers Association that due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts in Canada are extremely limited in their ability to accept Third Country National (TCN) cases during the peak demand months of June, July, and August. Visa processing those individuals will be suspended during this time.
A Third Country National is a non-Canadian citizen who is not currently a resident of Canada and wants to obtain a visa to the US from a US consulate in Canada. This often involves foreign nationals living in the US who do not want to return to their home countries for visa stamping and instead want to go to Canada to update the visa stamps in their passports.
The Department of State is encouraging such applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.
Cases already scheduled for appointments will be completed as scheduled.
On May 22, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Kentrox, Inc. that considered how an employer could demonstrate that it is infeasible to train a U.S. worker for a position sponsored through labor certification. The employer filed a PERM case for the position of “Software Engineer” and stated that this position required 24 months of experience as a software engineer, software developer, or a related occupation. However, when the employer listed the alien’s work experience, it only listed his position with the sponsoring employer. The Certifying Officer (“CO”) stated in an audit notification that the alien’s experience was gained from working for the employer in a position that was identical to the one sponsored. Per the PERM regulations, an employee may not qualify for a position sponsored through labor certification by using his experience gained with the sponsoring employer in an identical role. In response, the employer argued that it was not feasible to train a new worker for this position and provided a detailed letter from its Vice President of Engineering. The CO denied the labor certification. In considering the case, BALCA reviewed prior case law and found that employers must meet a heavy burden to prove that it is infeasible to train. It stated that “documentation must show more than just inefficiency . . . and that [BALCA is] generally skeptical about claims of infeasibility to train.” However, in reviewing the letter from the employer’s Vice President of Engineering, it found that the employer had provided a number of specific examples of the position’s challenges, had explained the critical timelines involved in the work that the alien was performing, and explored why even qualified candidates would not be able to receive the necessary knowledge to perform effectively in this role. BALCA found that his statements were “thorough and specific, and [were] obviously written by a person with firsthand knowledge about whether training for the position . . . was feasible given the employer’s business situation.” Consequently, the denial was overturned. While this case does provide support for employers that wish to demonstrate that it is infeasible to train a U.S. worker, the standard in these cases is high and should only be considered after careful review of the relevant factors involved in the position.
The WSJ ran an interesting article explaining how the employment of H-1b workers actually serves to increase the wages of their US citizen colleagues. This study appears to be in direct contradiction to the propaganda spouted at the dog and pony show put on by Senator Sessions a few weeks ago.
On April 24, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) discussed whether or not advertisements in one newspaper could count as multiple recruitment steps. In Matter of Delta Search Labs, Inc., the employer sponsored the position of “marketing manager.” As part of its recruitment effort, it placed two Sunday advertisements in the Boston Globe. It also listed the position opening in the Boston Globe during the week. The employer argued that the advertisement placed during the week should count as recruitment in a local newspaper. The case was selected for audit and the Certifying Officer (“CO”) denied it on the basis that the employer had replicated a previously used recruitment step through placing a weekday advertisement in the same newspaper that the mandatory Sunday advertisements ran. The employer requested that the CO’s decision be reconsidered and submitted substantial evidence that showed that the weekday editions of the Boston Globe reaches a different population than the Sunday edition and has higher circulation numbers than any of its local competitors. Consequently, the employer argued that a weekday advertisement in the Boston Globe was the most appropriate medium to attract able, willing, and qualified candidates. In reviewing the case, BALCA stated that the Office of Foreign Labor Certification’s FAQ’s on PERM do not “address the issue of whether one publication could, based on its daily and weekend circulation figures, serve as both a local and general circulation publication.” Furthermore, BALCA also found that the regulations “do not specifically prohibit an employer from using the same newspaper as both a newspaper of general circulation and a local or ethnic newspaper, provided the newspaper satisfies both categories.” Consequently, the CO’s decision was reversed. While this case provides support for the idea that a newspaper could appropriately be used as a local newspaper and as a newspaper of general circulation, BALCA found support to reverse this decision in the fact that the CO did not make a determination about whether the Boston Globe could count as a local newspaper and a newspaper of general circulation. Employers who are considering using advertisements in one newspaper to fulfill the mandatory recruitment steps and as a local newspaper must carefully document why they believe that the newspaper meets both criteria.
Senator Sessions (R-Ala) a long-time and outspoken opponent of the H-1b visa and any increase in the H-1b quota or an increase in legal immigration, hosted a policy discussion last week to denounce any increase in the H-1b cap. The premise of the discussion was that there were plenty of unemployed US workers with STEM degrees who were being bypassed for cheaper H-1b visa holders. Check out the summary of the arguments being made.
Earlier this week, the Department of Homeland Security published the proposed rule which among things would allow certain H-4 holders to obtain EAD cards. H-4 holders would be permitted to file for EAD cards if 1 of 2 conditions are met by their H-1b spouse:
1. Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
2. Is eligible for an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit under certain scenarios.
The proposed rule also covers other topics. Comments to this proposed rule are due by July 11th and our firm, on behalf of our clients, will be submitted official comments. You may also submit electronic comments on this proposed rule.