In a report released earlier this week, the NFAP claimed that the Senate’s proposals to restrict the usage of H-1b’s were not based on sound evidence and represented poor economic policy. This report was issued before Sen. Grassley and others introduced amendments which would create even further restrictions on the H-1b. Whether or not the Senate will allow uncontroverted facts and sound economic policy to get in the way of imposing restrictionist policies is yet to be seen.
With the announcement two weeks ago of the availabilty for certain H and L holders to have their visas re-stamped without an interview, many of us are hopeful that there has been a shift by the U.S. Consulates in India regarding the treatment of professionals working in the U.S. The last several years have seen a tremendous and unquestioned abuse of power by the US Consulates in India (and to a lesser extent in Manila) in the handling of H and L visa applicants. The U.S. Consulates have shown a propensity to re-adjudicate petitions and substitute their judgement for those of USCIS officials without any statutory or regulatory basis. Unfortunately, their interpretation of USCIS and DOL regulations, of which they have never been trained, left a lot to be desired. Whether their backlash against H and L holders was simply a reaction to the recession and high rate of unemployment or whether it was the result of a directive from the current Administration is open to conjecture. Nonetheless, 221g notices became the bane of visa applicants and U.S. employers. Often these requests called for documentation and information that was wholly irrelevant and to many, simply designed to harass and discourage visa applicants. Among the requests that we often saw, sought records of all of the employees of a U.S. company including personal information, job titles, job descriptions, salaries, etc. Even when a U.S. employer was able to provide the information requested, the U.S. Consulates often took 6 months or more to review the additional information. A visa delayed is a visa denied. We recognize that the U.S. Consulates have a tough job but, in this blogger’s humble opinion, their job would be much easier if they focused on doing their job and stopped trying to do the job of the DOL and USCIS. Let’s hope this new policy is but the first step in a return to the fair and legal treatment of H and L visa applicants in India.
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.
Coinciding with the release of a study conducted by the National Foundation for American Policy, a group of US business leaders met with President Obama and urged him to reform the skilled visa system through the utilization of policy reforms. Though President Obama consistently talks about government getting out of the way of private business, his policy-makers at the USCIS have been acting in just the opposite manner. The USCIS through the use of policy memos such as the January 2010 Neufeld memo have engaged in a systematic campaign to thwart the growth of US businesses that utilize foreign workers. Specific policies have been directed at entrepreneurs and small and medium sized businesses who often drive employment growth especially in recessionary times. It is hoped that President Obama will turn some of his talk into action. The Huffington Post has published a summary of some of the proposals that were discussed during the meeting. Check it out and forward it to your friends and your Congressional reps because although there is much that President Obama could do, significant changes will likely require legislation.
TechServe Alliance announced that Senator Cornyn (R-Texas) has written a letter to USCIS Director Alejandro Mayorkas urging the Director to consider the implications of the Neufeld memo and its impact on the IT Staffing and Consulting industry. The Senator urged the Director to meet with industry officials to fully understand the impact of this policy. There is evidence that the Neufeld policy has led to a greater outsourcing of IT jobs overseas, severely limited the creation and growth of small and medium sized IT businesses which, have long been acknowledged as critical in ecomoic growth and curtailed US domestic hiring. It is hoped that those were unintended consequences and that the Director will take a personal interest in this critical issue.
Kudos to Senator Grassley, his puppets at USCIS and other like-minded policy makers that have consistently created or applied policies that restrict and burden the use of the H-1b visa. Oh how quickly our brilliant politicians and policymakers forget that Intel, Google, Yahoo, and eBay were all founded by immigrants in an era with LESS restrictions on the H-1b visa and LESS restrictions on the L-1b visa and LESS of a wait for a green card. USA Today reports the story of SnapDeal a high tech company whose founder was previously in the US on an H-1b visa but decided to start his new company in India instead of the US due to H-1b visa restrictions. The company has grown to a size of over 400 employees. But, hey we don’t need those jobs here in the US. It’s time for Washington DC to wake up and recognize that there are economic consequences to immigration policy and the US economy is being negatively impacted by the current culture of NO !
With the H-1b cap season in full swing, the USCIS has issued a new set of FAQ on the subject of “cap-gap”. A “cap-gap” occurs when a foreign student’s EAD card, issued pursuant to the OPT rules, expires prior to October 1, 2011. The USCIS has adopted rules that provides for an automatic extension that allows students to continue to be employed under the OPT provisions as long as their sponsoring employer has timely filed an H-1b cap subject petition that is properly receipted. An employer should be careful that the employee’s I-9 form is properly completed in this situation. We applaud the USCIS for its “cap-gap” policy.